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V 



A CONSTITUTIONAL 

HISTORY OF THE 

AMERICAN PEOPLE 
1776 1 8 5 o 

BY FRANCIS NEWTON THORPE 

Illustrated with Maps 



IN TWO VOLUMES 
VOLUME ONE 




NEW YOR.K AND. LONDON 
HARPER & BROTHERS PUBLISHERS 

1898 



16854 



■ 




SEP 1 189? 









WO COPIES RECEIVED. 



Copyright, 1898, by Harper & Brothers. 

All rights reserved. 






" . . . The form of government which prevails is the 
expression of what cultivation exists in the population 
which permits it. . . . The history of the State sketches 
in coarse outline the progress of thought and follows at 
a distance the delicacy of culture and aspiration." 

EMERSON, "Essay on Politics." 



PREFACE 



This work contains the evidence of changes — 
and, it is believed, of progress — in the ideas and 
opinions which the American people have held 
respecting the principles, the organization, and 
the administration of their civil institutions. It 
is a record of the evolution of government in this 
country since the Revolution, and it rests upon 
authorities hitherto almost entirely disregarded. 
Constitutional history is the history of a constitu- 
ency, which, consciously or unconsciously, is ever 
striving to promote its own welfare. A constitu- 
tional history deals primarily with persons, not 
with documents. Laws and constitutions, written 
or unwritten, are the evidence of the efforts of a 
constituency to secure its ends. The develop- 
ment of constitutional government consists, essen- 
tially, in the definite limitation of authority, in 
order to accomplish purposes either implied or 
specified. These purposes are constant demands 
upon the constituency, but the means adjudged 
reasonable or necessary for securing them are as 
constantly changing. The process is from things 
to persons ; it is progressive because it is dynamic. 



Preface 

No one can go over the evidence which this work 
presents and have his confidence shaken in the fact 
that American civil institutions are an enduring 
monument to the general amelioration of the con- 
ditions of human life which characterizes modern 
civilization, and particularly the civilization of the 
last century and a half. Yet, when we reflect on 
the humanity of government in our day, we realize 
that we are startlingly near the age that interpreted 
criminal law to be for the purpose of exterminat- 
ing, not of reforming, evil-doers — an age which felt 
compelled to include in its written constitutions 
of government the provision that excessive bail 
should not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments in- 
flicted. Public opinion to-day is the living law 
whose mercy seasons justice. 

There is another, perhaps a more impressive, 
proof of the general amelioration of men, man- 
ners, and laws — namely, the gradual growth of 
the national idea — that is, the gradual disappear- 
ance of isolated, petty, and antagonistic commu- 
nities, and the slow but sure recognition of the 
presence of an organic and moral person which 
we call the Nation. It is yet but a partly discov- 
ered country, but every voyage of social and in- 
dustrial effort uncovers its farther shores. Our 
constitutional history, like that of every other peo- 
ple, is a history of the evolution of religious, of 
political, and of industrial rights. The steps in 
all this progress are recorded in the results of 
many struggles. Among these are the struggles 

vi 



Preface 

for the extension of the suffrage, for the equita- 
ble apportionment of representation, for the abo- 
lition of discrimination on account of race or of 
previous condition, for the organization of sys- 
tems of education free to all, for the separation 
of the state from questionable practices, and for the 
establishment of government directly upon the 
will of the people. Incidental to these processes 
has been the slow definition of the functions of 
the state, of its rights as a moral person in co- 
ordination with the rights of the individual and of 
its powers and their fields of operation — executive, 
legislative, and judicial. And, finally, the evidence 
suggests, what seems to escape the attention often- 
times not merely of individuals, but also of masses 
of men — that government is made for man, and man 
not merely for government. 

The evidence enables us to deduce, with ap- 
proximate accuracy, the principles on which gov- 
ernment in America rests. The peculiar claim of 
popular government to universal authority is its 
identification with the great principles of civiliza- 
tion. It claims to be founded upon the rights of 
man and the principles of human nature. Popu- 
lar government is still on trial. Its principles are 
simple and profound, and often seem lost in a mass 
of legislation, judicial decision, executive action, and 
popular agitation. It is possible to know its facts 
and miss its principles. If the evidence here pre- 
sented shall lead the reader to the consideration of 
these principles, the purpose for which this history 
has been written will have been accomplished. 

vii 



Preface 

The principal authorities upon which the evi- 
dence rests are the laws and constitutions of the 
country, and the journals, proceedings, and debates 
of constitutional conventions. The constitutional 
convention originated in America, and is a recog- 
nized political institution in modern government. 
Perhaps it might be called the principal contribu- 
tion of America to the political agencies of the 
world. It is a grand committee of the constitu- 
ency authorized to submit a plan of government. 
Its discussions have hitherto been neglected as 
evidence of the nature of American civil institu- 
tions and of their trend and administration. The 
traditional distinction between State administration 
and national government has done much to estab- 
lish a popular notion that they rest on different 
principles. The history of our institutions con- 
firms the contrary idea, that government in this 
country rests upon principles broad and general, 
and that the idea of union is as scientific as it is 
legal. 

A word may be added on the method of treat- 
ing the subject. Government rests on ideas and 
ideals. These, in so far as unfolded at the organ- 
ization of the American commonwealths in the 
eighteenth century, are traced, some to their origin 
and all to their end, in the earlier chapters of the 
first volume. An examination of the constituency 
follows — the people in their local civil organiza- 
tion and also in their racial and social relations. 
Our dual system of government — State and na- 
tional — sooner or later compelled issues involving 

viii 



Preface 

the question of sovereignty. In one form the 
issue is stated in 1798 and compromised in 1820. 
The constituency itself is constantly changing 
and rearranging the political estate. This calls 
for some account of the franchise — its basis and 
its growth. The extension of the franchise to 
free negroes involves the fate of slavery. This 
is more clearly seen about the time of the Mis- 
souri Compromise. From that time immigration 
and migration into the West rapidly enlarge the 
field of controversy, and more sharply define the 
incongruous elements in our political institutions. 
The spirit of democracy seizes the constituency, 
and a general demand is heard that the appointive 
system be abolished and the elective system be 
substituted. This demand, active after 1820, leads 
to a reorganization of government in America. 
The process characterizes political action for the 
next thirty years, and appears on party records 
as a series of reforms in the franchise, in repre- 
sentation, in legislative functions, in judicial organ- 
ization, in public finance, in local government, and 
in provisions for free schools. 

By 1850 the first wave of population had passed 
across the continent from the Atlantic to the 
Pacific, and the public domain was under local 
civil government. The complexity of the changes 
wrought during seventy-five years is suggested by 
the extension of the Union westwards, from thir- 
teen States to thirty-one States and six Territories. 
The extension was in two columns, a Northern 
and a Southern, whose elemental differences were 

ix 



Preface 

clearly defined. Between extremes lay a border- 
land — the Border States. It is necessary, therefore, 
to record three phases of civil evolution, and, again, 
a fourth phase, because, in the far West, men of 
the North, of the South, and of the Border States, 
united to found the first commonwealth on the 
Pacific coast. The nature of the civil process dur- 
ing all these years is best understood by examin- 
ing somewhat in detail the work of constituencies 
in the North, in the South, in the East, in the 
West, and at the Border. This examination is 
begun in the first volume and is continued in the 
second. The time is from 1845 to 1850, and the 
constituencies are Louisiana, Kentucky, Michigan, 
and California. The principles of government in 
America are here again examined, and the ex- 
perience of more than a half-century enables the 
people to apply these principles in new directions, 
and, sometimes, in new ways. America in 1850 
differs from America in 1776. The concept of the 
State and its functions has greatly changed. Civil 
relations are seen in a new light. Citizenship is 
defined anew. The co-ordinate branches of gov- 
ernment are conceived not only under revised 
relations, but as under a stricter accountability to 
the people. Representative government sits more 
firmly in its continental seat; the anxieties and 
strivings of the early years of the republic are 
gone ; the people seem not only poised, but ag- 
gressive and almost proselyting in their political 
confidences. The democratic spirit has permeated 
the land — local government in towns, cities, and 



Preface 

counties feels its power. Democracy has so re- 
vised its ideals that it seems to have passed through 
a peaceful revolution. The details of this revolu- 
tion are recorded in the later chapters of the 
second volume. An examination of the evidence 
there presented shows the truth and the insight 
of Emerson's observation, that society is ever in a 
state of flux. Constitutions and laws, usually 
placed as permanent landmarks on the civil es- 
tate, appear and disappear like the species in the 
organic world. Even our constitutions of govern- 
ment prove the law of evolution. 

Many concepts of the Fathers have been re- 
vised ; some have been abandoned. It is a wise 
generation that knows itself and its own. From 
the evidence presented in these volumes it must 
be admitted that the changes wrought in Ameri- 
can civil life during these seventy-five years indi- 
cate that the American people became liberal and 
altruistic as they became a power among the na- 
tions of the world, and that our constitutional his- 
tory is of a constituency that has grown humane 
as it has become conscious of its responsibilities. 



CONTENTS 



CHAPTER I 
THE STATE 



PAGE 



Two large processes to be worked out in the evolution of 

democracy in America i 

The forerunners of representative government in America . 2, 3 

Racial influences on the State 3 

Democracy in America a resultant 4 

Government a problem of adjustments 5 

Labor dictates in the evolution of democracy 6 

Character of the Revolution of 1776 7 

The blending of industry and politics 8 

Politics vs. Industry 9 

The age of discontent in democracy 10 

The tests of democracy 11 

The demands put upon it 12 

The ultimate in democracy 13 

The tests of administration 14 

Democracy defined 15 

Its principles, according to Webster 16 

Education the guardian of public safety 17 

The seventeenth and eighteenth centuries compared ... 18 
True character of the democracy of the eighteenth century 

now better understood 19 

The phases of democracy in its evolution 20 

Sequence of political aspirations 21 

The transition, in this country, from ancient egoism to 

modern altruism 22 

Development of constitutional government in America . . 23 

Theories and definitions set forth 24 

Conspicuous omissions in the national constitution ... 25 

xiii 



Contents 

PAGE 

Successive groupings of civil interests 26 

The altruism of democracy 27 

Political campaigns — the organs of reform, change the form 

of the State 28 



CHAPTER II 

THE FORM OF DEMOCRACY IN THE EIGH- 
TEENTH CENTURY 

In the closing )rears of the seventeenth century America gave 
little promise of becoming a continent of common- 
wealths 29 

Authorities for opinions respecting the evolution of govern- 
ment in the United States 29-32 

State of America in 1700 30-32 

Forces contending for supremacy 32 

The survival of free institutions 33 

Birth of a continental spirit in America 34 

Forebodings of the Revolution 35 

The struggle between absolutism and individualism ... 36 
The American constitutions the slow product of expe- 
rience 37, 38 

Montesquieu's influence in America 39 

Blackstone's influence 40 

Lowell's estimate of Voltaire's influence 41 

Franklin's influence 42 

Jefferson and the Rights of Man 43 

The American Revolution reconstructed the theory of the 

State 44 

Legal fictions adopted as dynastic facts 45 

The new constitutions were experiments 46 

Concepts, old and new, of American institutions 47 

The two ideas at the basis of American political institutions : 

natural rights and the social compact 48 

The great American Bill of Rights drawn by George 

Mason 49 

Applications of the doctrine of natural rights 50 

The struggle for trial by jury 51, 52 

Christian doctrine in the early constitutions 53» 54 

Liberality of Vermont respecting other than the white race . 54 
Virginia and New England the parents of constitutions in 

the West 55 

xiv 



Contents 



PAGE 



The guarantee of rights 56 

Reforms and new precedents 57 

Effort to make constitutional provisions permanent ... 58 

Constitutions evolving into codes 59 

CHAPTER III 

THE ORGANIZATION OF GOVERNMENT IN THE 
STATES 

Disqualification of non-church members . . 60 

Social distinctions 61 

Constitutions change most in times of peace 62 

How administrative measures may become provisions in 

bills of rights 63 

The States were making the first attempt in history to define 

civil functions by means of a written constitution ... 64 

English and American legislative systems compared ... 65 

The difficulties in fixing a basis of representation .... 66 

Conservatism of early democracy 67 

The qualifications of members of the Assembly . . . 68,70,71 

Legislative procedure borrowed from England 71 

The test of sovereignty 72 

State and national sovereignty 73 

John Adams, the father of the public school ...... 74 

First limitation of the power of the Legislature 75 

The most artificial part of the system, the Senate .... 76 

The qualifications of senators 77, 78, 79 

Senatorial apportionment 80 

Characters of the early Senate 81 

The Senate a discovery in politics 82 

Qualifications of the governor 82, 83 

Popular distrust of executive power 84 

The first commonwealth governors 85 

Their obscure functions 86 

Dignity attached to the office 87 

The executive council 88 

Organization of the courts 89 

The golden age of litigation 90 

Complications of early legal practice 91 

Slavery; nationality 92 

Qualifications of the electors 93» 94» 95» 96 

The landless man 97 

xv 



Contents 

PAGE 

The initiative in constitutional reforms 98 

Individualism dominates politics 99 

Permanency of the ancient landmarks 100 

CHAPTER IV 

TRANSITION TO INDEPENDENT STATES 

The colonization of America proceeded according to feudal 

notions 101 

Representative government in America incident to the con- 
ditions of colonial life 102 

Representative institutions prompted by the love of gain . 103 

The democratic tendency of colonial life 104 

Conflicting notions concerning representation in early colo- 
nial times 105 

Fictitious analogies 106 

Formation of two legislative chambers 107 

Spread of the democratic spirit over America 108 

Birth of the American legislature 109 

Government not directly founded on the people no 

How the colonies became States in 

The procedure abnormal 112 

Congress advises the organization of independent State gov- 
ernments 113 

New Hampshire 113, 114 

South Carolina 115,116 

Virginia 117,118 

New Jersey 118 

Delaware 119 

Pennsylvania. 120 

North Carolina 121 

Georgia 122,123 

New York 123,124,125 

Vermont 126, 127 

Connecticut 128 

Rhode Island 129 

Massachusetts 130, 131, 132 

CHAPTER V 
THE CONSTITUTIONAL ELEMENTS 

Virginia removes the last obstacle to the admission of Ken- 
tucky 133 

xvi 



Contents 



PAGE 



The Kentucky conventions of 1792 and 1799 134 

Beginnings of Tennessee . 135 

The State of Franklin . 136 

The Tennessee Convention of 1796 137 

Eminent personages in the eighteenth century conven- 
tions 138, 139 

Codes and constitutions composite in character ; interstate 

influence 140 

The national constitution largely founded on State laws . . 141 

Derivative features 142 

The national and the State constitutions form an organic 

whole 143 

The Ordinance of 1787 144 

Analysis of its provisions 145, 146, 147 

Provision for the future 148 

The territory southwest of the Ohio 149 

North Carolina imposes a permanent condition upon it . .150 
Readoption of the ordinance by the first Congress . . . .151 
Admission of Vermont ; organization of the Territory of 

Indiana 152 

The country between Georgia and the Mississippi River . .153 

Organization of the Territory of Mississippi 154 

Robert Grey, captain of the ship Columbia, discovers 

Oregon 155 

The Indian lands an exception to the law of civil govern- 
ment 156 

The Indian tribes bar the way to the West 157 

The three lines of immigration to the West 158 

State of the country in 1800 158-159 

The fundamental idea was that property is the basis of gov- 
ernment 160 



CHAPTER VI 
THE FIRST STRUGGLE FOR SOVEREIGNTY 

No American constitution has defined sovereignty .... 162 

Strong and weak elements in the States 162, 163 

Efforts to formulate a federal union 163 

The articles of confederation on the circuit 164 

History of the phrase, "free, sovereign, and independent" 164, 165 
Sovereignty discussed in the Convention of 1787 .... 166 
Remarks of Hamilton, King, Gerry, and Ellsworth . . 167, 168 

xvii 



Contents 



/' 



PAGE 

Residuary sovereignty and popular sentiment 169 

Hostility of the States to the new government 170 

Jefferson's definition of political parties in 1798 171 

Party material in the country 172 

Feebleness of the national idea 173 

The power of the rising West 174 

What the West thought of the East 175 

The Supreme Court declares for national sovereignty . . .176 

The States set the decision aside 177 

The Constitution amended, accordingly, 1798 178 

Jefferson organizes the Democratic party 179 

His political methods and his lieutenants . . . . ' . . .180 

The alien and sedition laws force a crisis 181 

Character of these laws ; their reception by the country- . .182 

The coming of Clay 183 

The Kentucky resolutions 183 

The Virginia resolutions 184 

Examination of them 185 

The resolutions before the States 186 

Madison makes the argument for State sovereignty . . . . 187 
Nullification; popular interpretation of federal powers . . 188 
The " Doctrine of '98 " wins in the election of 1800 . . . .189 
A new party in power 190 

CHAPTER VII 

THE POLITICAL ESTATE AT THE OPENING 
OF THE NINETEENTH CENTURY 

A government must be judged by the condition of the peo- 
ple who support it 191 

New Hampshire inaugurates reform in the franchise by 
adopting persons instead of property as the basis of gov- 
ernment 192 

Qualifications of the voters in New England in the eighteenth 

century 193, 194 

The franchise in New York 195 

The four great districts of New York State 196 

The franchise in New Jersey and Pennsylvania 197 

In Delaware, Maryland, and Virginia 198 

In North Carolina and South Carolina 199, 200 

In Georgia, Kentucky, and Tennessee 201 

In Vermont 201-202 

xviii 



Contents 



PAGE 



Religious qualifications 202 

Their disappearance 203 

Causes of this 204 

Opinion of non-churchmen . 205 

The free person of color 206 

Negro emancipation discouraged 207 

The free negro in the North 208 

The State not conceived as altruistic 209 

The rising discontent 210 

CHAPTER VIII 

THE FIRST MIGRATION WEST 

The fireside stories of the Northwest 211 

Settlement of the Triangle 212 

The approaches to the new Northwest 213 

Two streams of population converging upon the Chautauqua 

country 214 

William H. Seward, the Holland Land Company, and the 

settlers on its lands . . . . . 215 

Trade and travel on Lake Erie 216 

Smuggling and the embargo 217 

The home of a pioneer 218 

Early industries in the Chautauqua country 219 

On the circuit 220 

Presbyterians and Methodists 221 

The frontier store 222 

Physicians and school-masters 222, 223 

The first court 223 

The first mails from Buffalo westward 224 

Child life , 224 

Politics and religion 225 

Social distinctions on the frontier 225, 226 

Slavery in the Northwest 226 

Purchase of Louisiana 227 

The purchase changed the history of the United States . . 228 
Organization of the Territory of Ohio and first provision for 

free public schools 229, 230 

Territory of Michigan and of Illinois organized 231 

Congress prescribes a property qualification for voters . .231 
Indian war on the frontier ; Harrison and Jackson .... 232 

The barrier to the West removed 233 

Influx of immigrants ; Alabama and Mississippi organized . 234 

xix 



Contents 

PAGE 

Four new States — Indiana, Mississippi, Illinois, Alabama ; 

Louisiana; Missouri 235 

Maine, Arkansas ; the United States takes military possession 

of Florida 236, 237 

Admission of Missouri 237 

All territory east of the Mississippi organized under local 

civil authority 238, 239 

CHAPTER IX 

FROM THE ALLEGHANIES TO THE MISSIS- 
SIPPI 

The advancing frontier in 1800 240 

Who shall control the channels of commerce ? 241 

The outposts of the country in 1800 242 

Louisiana an unknown land 243 

Shall the Ordinance of 1787 be repealed ? 244, 245 

Objections to the admission of Louisiana 246 

Organization of the Territories of Orleans and Louisiana . 247 

The new Missouri Territory 248 

State making, Indiana 249 

Illinois 250 

Extension of the Ordinance of 1787 251 

The Missouri controversy 252 

View of the country in 1820 253 

Florida purchased 254 

What is the western boundary of the United States? . . . 255 

Changes in Michigan Territory 256 

The boundary commissions of 1822 257 

Independence of Texas 258 

The organization of new Territories and States keeps pace 

with the movements and increase of population . 258, 259 

The founding of Chicago 259, 260 

The Indian tribes and the immigrants 261 

New men and new public issues 262 

Extension of the franchise 263 

The epoch-making West 264 

Homeric quality of life on the frontier 265 

The East and the West view the national government in 

different lights 266 



Contents 

CHAPTER X 
FEDERAL RELATIONS — MISSOURI 

PAGE 

The guarantee of property rights in the treaty of 1803 . . . 267 
Critical application of the guarantee in the request of Mis- 
souri for admission into the Union 268 

Tallmadge of New York proposes a clause restricting 

slavery . 269 

Has Congress the power to restrict ? 270 

Is slavery detrimental to a State ? 271 

What is a republican form of government ? 272 

Some provisions in the Constitution not applicable to new 

States 273 

Difference between migration and importation 274 

A blow for emancipation 275 

The attack on slavery an attack on property 276 

Proposed line of demarcation for slavery 277, 278 

Popular excitement over the Missouri question 279 

A new element in the question ; Maine 280 

The Maine-Missouri bill in the Senate 281 

Slavery restriction (the Taylor amendment) discussed in the 

House 282 

The two Houses in conference 283 

Prospect of disunion, 'T~"7 V 284 

Stubborn fight for free soil 285 

Thomas H. Benton the author of the objectionable clause 

in the Missouri constitution 286 

Its conflict with the national Constitution 287 

Can Congress prescribe conditions for a new State? . . . 288 
Let the Supreme Court decide doubtful questions .... 289 

Who are citizens ? 290 

Increase in the number of free persons of color 291 

Can a new State exclude free negroes ? 292 

They are not citizens in the meaning of the Constitution. . 293 

The assertion controverted 294 

No discrimination in the national Constitution 295 

Is Missouri a Territory or a State ? 296, 297 

The imposition of a condition, by Congress, on a State con- 
trary to precedent 298 

What privileges have black citizens ? 299 

Clay's compromise 300, 301 

General Pinckney's testimony to the meaning of the fourth 

article of the Constitution 302 

xxi 



Contents 

PAGE 

Firm stand of the restrictionists 303 

Shall the electoral vote of Missouri be counted ? . . . 303, 304 

Tumult and confusion in the House 305, 306 

Clay's peaceful efforts 307 

The question at the root of the Missouri controversy . 308, 309 

Powers of Congress 310,311 

Arguments against them and for them 311,312,313 

Opinions of John Jay and Daniel Webster 313.314 

Triumph of the " Doctrine of '98 " in the settlement of the 

Missouri controversy 315 

CHAPTER XI 

BEYOND THE MISSISSIPPI 

The Arkansas constitution of 1836 316,317 

The Michigan constitution of 1835 318 

The Indian Country 319 

Wisconsin organized 320 

Iowa organized 321 

Westward movement of the frontier 322 

The era of internal improvement begins 323 

Abraham Lincoln's first political circular (internal improve- 
ments, banking, schools) 324-328 

The demands of the West 329-330 

His second circular 330, 331 

The State mortgaged for internal improvements 331 

Collapse and repudiation 332 

The American people in 1830 333 

The effects of the panic of 1837 334 

Mexico, Texas, and the United States 335 

The South eager to recognize Texan independence .... 336 

Opposing sentiment in the country 337~34° 

State sovereignty notions in Maine and Massachusetts drawn 

out by the boundary dispute with Great Britain . 340, 341 
Treaties with Russia and Mexico ; immigration to Texas . . 342 

Texas and its constitution 343, 344 

Wisconsin admitted 345 

California 345, 346 

Organization of Minnesota and Oregon 347 

Organization of Utah and New Mexico 348 

The changes of three-quarters of a century, 1776-1850 . . . 349 

Foreign immigration 350 

xxii 



Contents 



PAGE 



Building up the cities of the West 351 

The homes of the people 352 

The churches and the great preachers 353 

Character of the population 354 

Slave soil hemmed in by free labor 355 

CHAPTER XII 

A PEOPLE WITHOUT A COUNTRY 

The oppressors and the oppressed 356 

The false tenets of American democracy 357 

When the slave became a political factor 358 

The anomaly of free negroes and negro slaves in a de- 
mocracy 359 

Free negroes in New England 360 

The penalties of emancipation . . • 361 

Laws keeping free negroes in intellectual bondage .... 362 

Rapid increase of free negroes 363 

Relative increase of hostile legislation 364 

Ostracism of the free negro North and South ...... 365 

His condition often worse than that of the slave 366 

Flight of the free negro into the wilderness 367 

The free negro a standing incentive to servile insurrection . 368 

Free negroes treated as runaway slaves 369 

Case of the slave " Isaac " 370 

New York admits free negroes to the franchise in 182 1 . .371 

Reason for this liberal innovation 372 

Exclusion of the class from the schools, North and 

South 372, 373 

Prudence Crandall's free school 373, 374 

Discrimination in Ohio 375 

Change of public opinion in Ohio 376 

California and the free negro ; resolutions of the States 377, 378 

Foreign immigrants cow the negro voter 379 

The underground railroad 380 

Hatred of the negro in the North 381, 382 

He was classed with the criminal population 383 

Admitted to the church, excluded from the industries . . . 384 

The struggle for free public schools 385 

Slavery muzzles free speech 386 

The cost of slavery 387 

The new West frowns on the free negro . . 388 

xxiii 



Contents 

PAGE 

The migration of the free negro follows the law of climate in 

spite of acts of legislatures 389 

Selfishness at the bottom of racial hostility 390 

Race prejudice in California in 1849 391 

The States on the threshold of division along color lines, 

in 1850 392 

Northern ameliorative measures for the negro 393 

They were dictated by self-interest 394 

Exigencies compel concessions 395 

Questions pressing to the front whenever a Territory seeks 

admission into the Union 396 

Sources of our knowledge of the evolution of the American 

constitutions 397 

Typical States, North, South, East, and West 398 

Collapse of slaveocracy before free labor 399 



CHAPTER XIII 

DEMOCRACY IN A GULF STATE; 1845— LOUISI- 
ANA 

Reforms demanded in Louisiana 400 

Character of the population 401 

The foreign-born element 402 

Position of foreigners in slave States 403 

What influences dictated the qualifications of the voter ? . . 404 

Representation on the federal principle 405 

The economic aids to good government 406 

Sovereignty not in the people 407 

The question of residence 408 

Native-Americanism 409 

A confusion of precedents 410 

The rule of wealth 411 

The question of a property qualification 412 

Residential qualifications for office 413 

Discrimination against the citizens of other States .... 414 

Universal citizenship 415 

Immigration to the State must be encouraged 416 

The commercial importance of New Orleans 417 

A State must judge of its own best interests 418 

Citizens without naturalization 419 

The dangers of Native-Americanism 420 

Evil example of the Hartford Convention 421 

xxiv 



Contents 

PAGE 

New elements of political strife 422 

Liberal principles of our early statesmen 423 

Many of the " fathers " were alien born 424 

Judah P. Benjamin warns the State against the abolitionists . 425 

Slavery excluded foreign immigration 426 

Cosmopolitan character of Louisiana 427 

The doctrine of universal suffrage exploded 428 

Shall man or property vote ? 429 

Increase the number of freeholders * . 430 

CHAPTER XIV 

THE BASIS OF REPRESENTATION 

Shall the laboring man be allowed to vote ? 431 

Evil of an extended franchise portrayed 432 

Is not a property qualification for the voter a detriment to 

the State ? 433 

The power of Virginia as a precedent 434 

The South and its antagonistic population 435 

Evils of the single district system pointed out 436 

Where the federal number failed 437 

The city vote vs. the country vote 438 

Jefferson's Notes on Virginia cited 439 

Influence of Jefferson's ideas 440 

The congested power of large cities 441 

Political power should be diffused through the State . . . 442 

The negro beyond the pale of politics 443 

The equities of representation 444 

The federal basis and agricultural interests 445 

Relative wealth of the cities and the country 446 

In restraint of municipal power 447 

Instances of restraint in other States 448, 449 

Fact and fiction count in making a State constitution . . . 450 

Native- American ism and the naturalized citizen 451 

Right of a State to discriminate among its citizens .... 452 

Supremacy of Congress and the Constitution 453 

As to national citizenship . . . 454 



Contents 



CHAPTER XV 

ELEMENTS OF DISCORD IN THE COMMON- 
WEALTH 



PAGE 



Why the governor should be native born 456 

The American theory of citizenship 457 

Interstate rights of citizens 458 

Monroe, Madison, and Marshall on citizenship 459 

The foreigner in Louisiana 460 

Free colored persons and the slave States 461 

Van Buren and Tompkins on citizenship 462 

Politics and constitutional provisions 463 

Danger from northern abolitionists 464 

Did the national Constitution intend to include other than 

the white population in its provisions? 465 

The slave-holding concept of a commonwealth 466 

How can two antagonistic populations be represented? . . 467 

Slaves vs. white servants 468 

Difficulties in apportioning representation 469 

Slavery first disappeared in the cities 470 

The three methods of apportionment 471 

Danger of antagonism to slavery 472 

Town vs. country 473 

The equilibrium sought 474 

Slaves both property and persons 475 

Slaves vs. poor whites as elements in the population . . . 476 

Ancient privileges of slaves in America 477 

Slaves not political persons 478 

Can the federal basis be applied in a commonwealth? . . . 479 

Shall Louisiana condemn slavery? 480 

Massachusetts protests against slave representation in the 

Union . 481 

Power of a State over its own institutions 482 

How shall representation be equalized? 483 

Impending political changes 484 

Every man's hand against the negro 485 

Slavery makes equitable representation impossible . . 485,486 



Contents 



MAPS 

Map showing the English Colonies in North America ; re- 
drawn from the map published according to Act of 
Parliament June 10, 1775, by R. Sayer and J. Bennett, 
No. 53 in Fleet Street (from a copy in the Pennsylvania 

Historical Society) Facing p. 26 

Map of the United States in 1790, showing civil divisions 
and distributions of population ; compiled from the cen- 
sus and the statutes at large Facing p. 150 

Map of the United States in 1796, showing the Wilderness 
Roads ; redrawn from Wilkinson's map published in 
London, June 2, 1794, with the roads added from various 

authorities Facing p. 158 

Map of the United States in 1800, showing civil divisions 
and distributions of population ; compiled from the cen- 
sus and the statutes at large Facing p. 212 

A similar map for 1810 Facing p. 232 

A similar map for 1820 Facing p. 252 

A similar map for 1830 Facing p. 260 

A similar map for 1840 Facing p. 332 



A CONSTITUTIONAL HISTORY OF THE 
AMERICAN PEOPLE 

VOL. I 



A CONSTITUTIONAL HISTORY OF THE 
AMERICAN PEOPLE 



CHAPTER I 
THE STATE 



In the evolution of democracy in America two 
large processes were to be worked out — the utili- 
zation of the resources of nature and the organ- 
ization of civil affairs by means of a government 
adapted to such a country as ours. The indus- 
trial process has been co-ordinated with the civil, 
and democracy in America is the result. In Eu- 
rope, since the heraldic summons of the Refor- 
mation, which came hard after the Columbian 
voyages, and in America, with the coming of the 
seventeenth century, the principles of government 
have shown a democratic application. It might 
be expected that Europe would anticipate Amer- 
ica ; that in the deep mine of Indo-European ex- 
perience there should be worked out some of the 
principles of civil society as defined more clearly 
by modern tests ; it might be expected that the 
toiler in the mine might miss the principles, 



Constitutional History of the American People 

though contributing by his labor to their defini- 
tion in a later state of society, organized on an 
industrial and civil basis such as has been built 
upon in America. The thought of More, of 
Milton, and of Locke, of Montesquieu and of 
Penn, generalized upon the labor done in that 
mine, and grew into political systems, which, 
though differing from one another as widely as 
their authors, agree in placing a free man at the 
centre. It was too soon to find in any political 
system that modern correlative — free labor. The 
contradiction was sophistically avoided by deny- 
ing manhood to the slave. The slave was a 
beast of burden. But there are those who con- 
sider the end. It is the function of the political 
philosopher, in the social economy, to anticipate 
results. Thought outruns performance. So Mon- 
tesquieu anticipates the democracy of to-day, 
Hume anticipates the French Revolution, and 
Franklin the modern age of administration in 
government. Franklin finds the theory of the 
state made up, and devotes himself to the next 
problem — its administration. At times, from the 
close of the seventeenth to the close of the eigh- 
teenth century, the theory of the state was set 
forth, and the definition, modified by another cen- 
tury's experience, remains in the dictionary of 
politics essentially unchanged. It was made by 
successive processes in the evolution of democ- 
racy. Its elements are the individual, and that 
aggregate of individuals which we call the com- 
munity or state. 



The Foundations of Democracy 

The history of that definition is a chapter in 
the history of the evolution of democracy. Rome 
evolved the idea of a legal body called a corpora- 
tion ; itself a fiction, but a useful legal convention. 
This legal fiction was the chief discovery in gov- 
ernment for twelve hundred years. It was a le- 
gal device capable of a various civil application. 
While it was reaching perfection in southern 
Europe among the Greco - Latin peoples, the 
Teutonic peoples in northern Europe were yet 
uncivilized. Communal and individual interests 
were at war in all that region north of the Roman 
world. Communal interests were there subordi- 
nate to individual. Between the Roman and the 
Teuton was the Celt, who adjusted himself to 
the military form of the Roman state and laid the 
foundations of feudalism. He divided the land 
into counties, and rudely began that communal 
organization which has survived in our local and 
county government. It was the Celt who first 
applied the Roman military idea in local govern- 
ment. It was the Celt who first applied the ad- 
ministrative principles in the modern state, and 
his experience, chiefly military, bred in him slight 
respect for the form of government. Hence in 
the Celtic political economy arose a system of ad- 
ministrative law. A king is as dear to him by 
any other name, but he prefers the other name. 
His idea of the administration of government is 
military : the citizen is first a soldier. The rude 
and individualistic Teuton saw in the Roman cor- 
poration not merely a legal fiction, but a civil 

3 



Constitutional History of the American People 

opportunity. Why not view that burdensome but 
necessary relation between individual and individ- 
ual, between one and many in the state, as a 
compact? Why not conceive of the state as the 
civil resultant of these two factors — making the 
many a corporation, and yet not diminishing the 
rights of individuals? Between these legal parties 
a contract could be made, or be conceived as 
made. By the terms of this contract civil rights 
should be guaranteed; the soldier should first be 
a citizen. Rome gave the world order without 
liberty. The Celt administers government with 
occasional sacrifice of order to license. The 
Teuton conserves liberty and order. 

Democracy in America is the resultant of 
Roman, Celtic, and Teutonic ideas. It is a civil 
composite. Its evolution is recorded in a series 
of political adjustments. Political adjustments 
constitute the administration of government. It 
is that of which Franklin, Jefferson, Hamilton, 
and Lincoln frequently speak. It is a practical 
affair. It is the other half of the apple of civil dis- 
cord, as for ages the first half had been the theory 
of the state. 

Democracy in America is but slightly original. 
It was latent in European life long before the 
colonization of America; but the adjustment of 
local and general interests in the state has de- 
veloped before our eyes in this country, and there- 
fore it seems new and peculiarly our own. So 
the fruit on the tree is the farmer's; the flower 
on the bush the gardener's. Each wrought in 

4 



The Past Controlling the Present 

sincerity, but the seed was before flower or 
fruit. 

In the search after the genesis of government in 
America, it is difficult to distribute the shares of 
influence equitably among the contributing na- 
tions. It is the present that is hard to see. No 
new theory of the state distinguishes the political Q 
philosophy of the nineteenth century. Philo- , 
sophically, it is a century with a backward look. It 
explores the past to as great a distance as it antic- 
ipates the future. It sets in order the genesis of 
our civil institutions, and resolves us all into heirs- 
at-law. We have applied the past while working 
in the present. The style of the tool changes ; 
but frost and rain and earth are, and weeds grow 
in spite of botany. The apple on the tree, how- 
ever, is larger, fairer, and pleasanter to the taste 
than the wild apple ; the flower on the stalk is the 
history of generations of gardeners. Flower and 
fruit are come from fruit and flower, and their 
changes register an evolution hastened by intelli- 
gent culture. The free man is a part of the sys- 
tem. At one time he was of opinion that he was 
at the centre of the universe, but a bit of glass and 
the fall of a Newtonian apple put him in his true 
place. He has his place in nature, not in the 
worst rank, but he is a means of adjustment rather 
than a creator. 

Democracy in America is another chapter in 
the history of that adjustment. There is no break 
in the continuity: Roman, Celt, Teuton, American, 
each in his time. No American colony broke 

5 




Constitutional History of the American People 

wholly with the past. The necessity for unre- 
stricted labor compelled a democracy. Had the 
vast area now comprised within the United States 
been occupied, at the time of its discovery by 
Europeans, by a wealth - accumulating people, 
however civilized, who permitted European con- 
quest, the conquerors would not have set up 
a democracy ; the Mississippi valley would have 
repeated the story of Mexico and Peru. Had 
gold or silver abounded in New England, Penn- 
sylvania, or Virginia, the evolution of democracy 
on the Atlantic seaboard would have been retarded 
for centuries. Had the mechanical devices famil- 
iar now in lumbering, in mining, in manufactur- 
ing, and in agriculture been familiar to the world 
at the opening of the seventeenth century, democ- 
racy in America would still be a matter of politi- 
cal speculation. 

It was the necessity for labor that dethroned 
the king and enthroned the people in America. 
But the king is not dead. He never dies. We 
believe that we have crowned ourselves. We are 
Celtic yet. Our democracy, however, is not wholly 
of our own having. It is our political weather. 
It does not give universal satisfaction. We have 
had it long enough to tire of some of its virtues, 
and, if not acquainted with some of its vices, to 
be suspicious of their existence. The foundation ? 
of democracy is the necessity for free labor. If 
that ceases or is circumscribed, democracy will 
cease, or will be circumscribed. The fate of de- 
mocracy hangs on free labor. As long as the 

6 






Free Labor and the Revolution 

free man can labor and satisfy his wants in this 
country, democracy is a condition as well as a 
consequence of his labor. Remove the field or 
withhold the rewards of his labor, and democracy 
will disappear. It will become despotism, and it i 
will go the way of other despotisms. 

Its fall will be hastened by its complexity. De- 
mocracy is not so simple as monarchy. It was 
long ago pointed out by Montesquieu that in a 
democracy there is need of more virtue than in a 
monarchy; for a democracy depends upon the 
virtue of its citizens, while a monarchy depends 
upon the virtue of its ruling house. There is 
essentially the same requisite in both : those who 
rule must be virtuous. But virtue in a democracy 
lies close to industry. The state cannot get away 
from the mine, from the factory, from the soil. 

The crisis in the history of democracy turns on 
industrial adjustments. The American Revolu- 
tion was a war for free labor; its political pur- 
poses and effects were secondary. The political 
rights of our grandfathers were scarcely changed 
by Saratoga and Yorktown ; these contributed to 
secure their industrial rights. The civil war was 
a process of industrial adjustment. A democracy >' 
must consist wholly of free men ; the old idea of 
free states and free men must be realized. America 
was not a democracy until slavery was abolished. 
If it exists to-day in any form in the United 
States, then democracy does not obtain among us. 

There is a record of the evolution of democracy 
in America which seems to escape common at- 

7 



Constitutional History of the American People 

tention. It is a record written by hard experi- 
ence. It is found in the declarations of rights of 
our five-and-forty State constitutions, and in the 
amendments to the " supreme law of the land." 
For instance, the thirteenth, fourteenth, and fif- 
teenth amendments to the national Constitution 
were necessitated by the industrial effects of the 
civil war. They record the national adjustment 
towards the close of the nineteenth century. 
Though recorded in political form, they mean an 
industrial and an anterior fact. They are beyond 
repeal, just as the steam-engine and the printing- 
press are beyond repeal. Politics writes after 
them that their sanction is in Congress, which has 
power to enforce them by appropriate legislation. 
This power is of vast import and is to be exer- 
cised according to the necessities of industrial 
life. The necessary blending of industry and 
politics in a democracy is illustrated in the funda- 
mental laws of the local governments, the consti- 
tutions of the States. These are the most re- 
liable history extant of democracy in America. 
One hundred and sixteen of these constitutions 
have been adopted since June, 1776. In the only 
one of the eighteenth century which continues in 
force, that of Massachusetts of 1 780, the state is 
declared to be a contract, that the government 
" may be a government of laws, and not of men." 
William Penn conceived of the state as a compact, 
but the government was to be a government of 
men, and not of laws. The evolution of these 
two ideas is the history of American politics. 

8 



The Federal Basis as a Precedent 

artificial for it to think of departing from the prin- 
ciple that majorities must govern. There were 
two distinct races in the State, each entitled to its 
rights. In reflecting on their condition, it was nec- 
essary to conclude that numbers alone could not 
safely govern. Government by mere numbers 
would be obviously unjust. 

The discussion of the basis of representation 
was not allowed to pass without a defence of the 
federal basis on the ground of its antiquity, it hav- 
ing been made the precedent for apportioning rep- 
resentation by the statesmen of the Revolutionary 
period. As a compromise then made it had se- 
cured the integrity of the Union. If that basis 
were disturbed, the Union would be shaken to its 
foundations. Because of its origin, it was worthy 
of application in the commonwealths. The anti- 
slavery agitation at the time of the Louisiana con- 
vention had a powerful effect upon its proceedings. 
All of its members who in any way criticised sla- 
very, or who proposed any civil measure which did 
not strengthen slavery as an institution, were look- 
ed upon by their colleagues with suspicion. So, 
too, those who opposed the federal basis were ac- 
cused of deriving their arguments from Garri- 
son's Liberator, and as being disciples of Giddings 
and John Quincy Adams. Indeed, one member 
said that the first edition of the speech made by 
one of his colleagues had been delivered by Gid- 
dings in Congress at the time when that Represen- 
tative from Ohio had opposed the bill for the an- 
nexation of Texas. Giddings had said that if each 

479 



Constitutional History of the American People 

freeman of Texas should hold five slaves, he would 
exercise the same influence in electing federal of- 
ficers that would be exercised by four Northern 
freemen. If he held fifty slaves, he "would have 
an influence in electing federal officers equal to 
thirty-one hard-working, virtuous, and intelligent 
Democrats of New England or New York." In- 
deed, had not Giddings the advantage of the ar- 
gument, because he was a constant opponent of 
slavery, while the delegate from West Feliciana 
was advocating a principle which he was not will- 
ing to apply himself? What was the justice in 
such a procedure ? Could the people of Louisiana 
say with truth to their Northern brethren that they 
regarded the compromise principle in the federal 
constitution as wise and just, but deemed it odious 
and unjust when proposed for adoption in their 
own State constitution ? For Louisiana to con- 
demn this principle would work a disastrous effect 
on the interests of slavery. It should not be for- 
gotten that the makers of the new constitution for 
Louisiana not only represented its sovereignty as 
a distinct and independent commonwealth, but also 
represented the State as one of the American com- 
monwealths, and therefore were vitally interested 
in upholding the basis of representation established 
by the federal constitution. The Northern Aboli- 
tionists attacked this principle of representation. 
Already one of the outworks protecting slavery 
had been carried by storm when Congress had 
opened the way for the admission of incendiary 
petitions for the abolition of slavery. How feeble 

480 



Massachusetts and Slave Representation 

such an attack compared with the one on slavery 
by a sovereign State of the confederacy ! * 

Such an attack had already been made in a pe- 
tition from the Legislature of Massachusetts, call- 
ing for the amendment of the Constitution of the 
United States on the apportionment of represen- 
tation — that thenceforth slaves should not be in- 
cluded.! Should Louisiana join in this crusade 
against the rights of the South, involving not only 
a compromise of the Constitution, but the very ex- 
istence of the Union ? Should Louisiana adopt 
the arguments of Giddings and the principles ad- 
vocated by Massachusetts ? By refusing to apply 
this principle to Louisiana its people would virt- 
ually admit that it was unjust, and they would 
place themselves in a position of doing to others 
what they would not do to themselves. The for- 
eigners of the North could close the lips of the 
Representatives of Louisiana in Congress by quot- 
ing the proceedings of the convention in its oppo- 
sition to the federal basis. Either the Southern 

* Until the civil war, the national government was spoken of 
as a Confederacy, or Confederation, North and South ; oftentimes 
as the Union, but seldom as the National government. The Fed- 
eral idea of the Union was always uppermost in Southern con- 
ventions (as in this of Louisiana), and generally uppermost in 
Northern conventions. Lincoln's Gettysburg oration gives a 
date to the time when the word " Nation " passed into common 
speech as descriptive of a new concept of the Union : " Four 
score and seven years ago our fathers brought forth upon this 
continent a new nation, conceived in liberty, and dedicated to 
the proposition that all men are created equal." — November 
19, 1863. 

t Joint resolution of the Massachusetts Legislature, January 
16, 1844. 

I. — hh 481 



Constitutional History of the American People 

States had no right to insist upon the maintenance 
of this basis in the Constitution of the Union, or 
they could not with justice and propriety object 
to its application in their domestic representation. 
There was, indeed, a stronger reason why the basis 
should be adopted in a slave-holding State than 
by the national government. The authority of the 
State to abolish slavery could not be questioned. 
The general government had no right to interfere 
with the domestic institutions of a State. If, there- 
fore, there was no desire to protect slavery, and to 
protect it by incorporating this principle in the 
federal Constitution, was there not a greater neces- 
sity for its incorporation in a State constitution? 
If the people of Louisiana knew nothing of slavery, 
the arguments against the federal basis would be 
irresistible ; but, for weal or woe, that institution 
existed among them, and they had no desire that it 
should cease. The very fact of its existence nec- 
essarily led to the modification of the laws of the 
State. Every motive of self-preservation required 
that the legislation of the State should be adjusted 
to the existence of slavery. 

As the argument continued, some sought to 
show that the adoption of the federal basis would 
be a discrimination between the poor and the rich 
voters. To this it was replied that the poor man's 
vote was equal to that of the rich, even if slaves 
did enter into the basis of representation, for any 
basis which increased the representation of the 
parish would confer as much benefit upon its poor 
as upon its rich inhabitants. The federal basis 

482 



Politics versus Industry 

Democracy in America records the contest be- 
tween laws — a conventional system of politics — 
and men struggling for industrial freedom. This 
is shown in the history of the franchise. 

Experience in administration has passed over 
into formal statements in bills of rights. These 
clauses, brief in 1776, have grown into a treatise 
on civil principles in the present constitutions. 
Industrial life wrought this change. The provis- 
ions in these bills are the generalizations on in- 
dustrial data which record the evolution of democ- 
racy in all ages. 

Whatever discord may at present rage in the 
state, it is but the continuation of the old discord 
between desire and performance, between condi- 
tions in the evolution of government and the self- 
ishness of men. But in the industrial world, as in 
politics, liberty may run into license. That world 
has its order and its chaos, its desire and its per- 
formance, its theory and its administration. Per- 
haps it is unfortunate for the fate of democracy in 
America that we have always attempted to inter- 
pret it politically. Our books represent it as a 
political device. It has become almost axiomatic 
with us to seek the solution of problems in the 
state by a political agreement rather than by a 
better industrial organization. Politics and labor 
are the democratic team ; but politics leads. 
The state, if corrupt, is regarded as politically cor- 
rupt. Industry has been the shuttlecock of poli- 
tics, and those who labor have been viewed as 
the beneficiaries of the state, and not truly as its 

9 



Constitutional History of the American People 

essential elements. The industrial discontents 
which characterize the present cannot all be right- 
ly charged against democracy. They exist inde- 
pendent of the form of government. It was long 
j thought that political equality would secure in- 
1 dustrial equality, but the effort to read industrial 
equality into life has not yet been an unqualified 
success. At present, the theory is winning popular 
support that the government — the public business 
of the state — should be made an industrial, as long 
ago it was made a political, copartnership. De- 
I mocracy is now construed towards communism, 
I towards a labor copartnership. The political co- 
partnership, on the basis of equality, has failed to 
make each citizen rich, and those who have not 
suspect those who have to be robbers, and look 
upon the state as the chief robber of all. In other 
words, democracy in America is showing its mate- 
rial side. Men are not content with the mere 
blessings of political liberty ; they demand wealth 
wherewith to enjoy the blessings. In a democ- 
racy Nemesis is active. The privileges of democ- 
racy breed discontent. Whatever the form or 
the idea of the state, man cannot get rid of him- 
self. His philosophy, his vagaries, his stomach, 
are always with him. Democracy is not an insur- 
ance against the consequences of being born into 
the world. It is no panacea. It has been quite a 
fashion, in this country, to maintain that our polit- 
ical institutions are a Providential device for " re- 
dressing the wrongs of the Old World." There 
can be no such device. The state is no better 



Test of Healthy Statesmanship 

than the men and women in it ; it can do no more 
than they. 

A sound statesmanship starts with a sound 
man. If no such man exists, then he must de- 
velop before the healthy state can come. And 
the people know this ; whence their lack of rever- 
ence for the state. It is a thing which they made, 
and they know its imperfections. " Vanitas vani- 
tatum !" They have made nothing. Did the 
farmer make the apple, or the gardener the flower? 
It is not only political but industrial honesty that 
we need. The coin that is current in a sound 
state has two faces. If on the one side there is to 
be read, " Man has by nature a political life," on 
the other it reads, " and an industrial also." 

Two centuries ago democracy was necessitated 
by forests to be cleared, mines to be worked, fields 
to be ploughed, things to be made, social relations 
and functions to be determined. This was at the 
threshold of a material age in the evolution of 
democracy. Some rude adjustments must be ex- 
pected in politics, while yet the industrial appa- 
ratus of the people is rude. The intricacies of 
democracy do not disclose themselves at first 
view. It is the administration of government in a 
democracy that tests its strength. An untouched 
continent afforded the material opportunity of the 
modern world. That opportunity was America. 
Now that the plough has furrowed across the conti- 
nent, that the primeval forest has been cut down, 
that the first output of the mines has made their 
operation more difficult and less remunerative, an 

ii 



Constitutional History of the American People 

industrial adjustment is thought necessary. The 
process of that adjustment is complicated, because 
it involves both the politics and the labor of men. 
It demands political recognition. Labor calls 
upon the state for a guarantee. Labor seeks a 
political formula by which every man may gain 
wealth. There is no doubt that this condition 
implies changes in the state. Is the state here- 
after to be defined as an industrial corporation, a 
copartnership of men for things ? Is the state to 
be conceived in this material philosophy as a fac- 
tory for the general welfare? Is it a device to 
assist those to acquire wealth who are incapable 
themselves of acquiring it? Is society to be di- 
vided into two groups: first, the state and the 
poor; second, the rich? Or is the state, like war, 
to be the " corrector of enormous times," and the 
enormity of the times to be wholly adjudged by 
those who wage the war and who expect to profit 
by it ? Is democracy in America, like monarchy 
and aristocracy in Europe, to develop class inter- 
ests, those of the house of Have and those of the 
house of Want ? 

Our democracy is evidently in a rudimentary 
stage. In spite of our suspicions of its defects, 
we like the reformers and their reforms no better. 
We are certain of one error, the opinion that our 
democratic institutions would correct the ills of 
mankind. Now we cry to the oppressed of man- 
kind, " Stay at home and endure your oppressions; 
we have our troubles, also." 

Wealth brings leisure, and leisure breeds criti- 

12 



Elevating Influence of True Democracy 

cism and discontent. A portion of our discontent 
arises from our limited notions of democracy. It 
consists of more than meat and drink and a ballot. 
The whole man is involved in it. He is somewhat 
more than an economic integer. His world is also 
moral and metaphysical. Material results will 
never satisfy him. The range of his activities is 
beyond the merely industrial treadmill. Our 
hoasted mechanical devices are in vain if the gain 
by them is merely more material. Moses and 
Newton got on well without the steam-engine or 
the telegraph. Comforts, wearily won, are quickly 
forgotten when the only capacity is for " more, 



more." 



Democracy has for its ultimate that with which 
it begins — man. It is doubtless productive of un- 
expected results, but in its evolution it must include 
the whole interest of man. Every actual state, 
says Emerson, is corrupt. The element of decay 
in our democracy is the cheapness at which it 
holds man. This evil has long been known. It 
was apprehended by the most democratic of Amer- 
ican colonizers more than two centuries ago. 
William Penn had learned from Sidney, and 
Locke and Montesquieu had learned from Penn. 
" The great end of all government," Penn de- 
clares, in his frame of government of 1682 for 
Pennsylvania,* is " to support power in reverence 
with the people, and to secure the people from the 
abuse of power, that they may be free by their just 

* Charter to William Penn and Laws of the Province of Penn- 
sylvania (Harrisburg, 1879), p. 93. 

13 



Constitutional History of the American People 

obedience, and the magistrates honorable for their 
just administration ; for liberty without obedience 
is confusion, and obedience without liberty is slav- 
ery. To carry this evenness is partly owing to 
the constitution " (that is, the theory of the state), 
" and partly to the magistracy " (that is, the ad- 
ministration of government). "Where either of 
these fails, government will be subject to convul- 
sions; but where both are wanting, it must be 
totally subverted ; then where both meet the gov- 
ernment is likely to endure." 

The convulsion of 1861 was an instance in 
which one of these failed. It proved that Ameri- 
can democracy could not be longer administered 
with its growth retarded by "obedience without 
liberty." Experience alone can correct the evils 
in the state. With the leisure of the twentieth 
century there come its political convulsions. If, 
in some way, men and women of leisure could see 
the necessity for labor, in order that government 
of a democratic kind may endure, they would find 
fields for their best efforts all about them. Munic- 
ipal evils are not all in the city -hall. Public 
charity is self-defence in disguise. If they who 
have amassed wealth desire its safety, it is better 
to make the use of that wealth a matter of public 
concern by bringing to its defence those who 
might destroy it. Time is the best friend of 
democracy. The canal-boy of to-day is the Pres- 
ident of to-morrow. The daughter of old Scrooge 
founds a hospital or endows a school. Labor will 
have its own. In the evolution of democracy in 

14 



A Transformation of Feudalism 

America industry shall receive its own, and poli- 
tics shall have its own, and no more. The admin- 
istration of government is the chief public concern. 
But in that administration man must be credited 
his full estate. Man, the citizen, must reckon with 
himself, and face his own destiny. Though crafty 
devices may seem to shift the burden of citizen- 
ship, the burden will always be found in the ever- 
increasing wants of the citizen himself. In democ- 
racy, as in other forms of the state, it is govern- 
ment of man for man that is wanted. Though the 
state be convulsed, though it be subverted, man 
will remain. The evolution of man is the hope of 
the state. In a democracy it is better to have a 
government of men rather than a government of 
laws. Then, whatever the forms of the state, the 
great end of all government will be secured. 

My theme is a history of the evolution of de- 
mocracy in America ; and by the term democracy 
is to be understood the form of government, not 
the doctrines of a political party. The civil insti- 
tutions of a free people are composite. Those of 
America are both a survival of the past and a 
promise of the future. A determining factor in. 
the development of government in Europe was 
feudalism. In America feudalism was trans- 
formed rather than obliterated. In place of the 
feudal system was substituted a system of checks 
and balances in government, by means of which 
the integral parts of civil society were duly func- 
tioned and the unity of the whole preserved. At 
least, this is the theory which American democ- 

15 



Constitutional History of the American People 

racy sets forth at the time when, colonialism 
having been transformed into continentalism, con- 
tinentalism was again transformed into nationality. 
Little is heard in our day of that favorite device 
of American statesmen of the eighteenth century : 
the device of checks and balances. And chiefly 
for this reason : that the test of government in 
our time is its administration, not its theory. A 
history of the development of constitutional gov- 
ernment in America is a history of political theo- 
ries, political principles, and political administra- 
tion. If democracy as a form of government is 
worthy of the support of mankind, it must rest upon 
political principles, and the history of the inter- 
pretation and application of these principles will 
be the history of the evolution of popular govern- 
ment. Although our constitutional history appar- 
ently involves elaborate analysis of many laws and 
constitutions, yet the principles upon which our 
political institutions are founded are few. I know 
of no better formulation of these principles than 
that made by Webster* Popular government 
rests on the basis of representation ; the will of the 
majority is the force of law ; the law is the supreme 
rule in the government of all ; the supreme law is 
declared in written constitutions ; public education 
is the diffusion of true morality. Webster's in- 
clusion of education as a paramount factor in the 

* Address at the laying of the corner-stone of the addition to 
the Capitol, July 4, 185 1. See also Plymouth oration, December 
20, 1820; Bunker Hill oration, June 17, 1843; and argument in 
Luther vs. Borden, January 27, 1848. 

16 



Education the Guardian of Public Safety 

state was made before a system of public schools, 
supported by public taxation, had been adopted in 
any American commonwealth. Webster to the 
end of his life showed the effect of social condi- 
tions which prevailed in America in his earlier 
years. Then it was commonly believed that po- 
litical privileges could safely be intrusted only to 
those who proved themselves worthy by possess- 
ing property, usually realty, and by professing be- 
lief in a religious creed. Property and religious 
qualifications were thought to be the guardians of 
public safety. The elector, therefore, was required 
to comply with them, and the elected not only to 
profess his belief in a prescribed creed, whether 
fixed by law or by public opinion, but also to pos- 
sess a greater amount of property than that re- 
quired of the elector. Since Webster's time, pub- 
lic opinion has changed, and in place of property 
and religious qualifications it has substituted man- 
hood suffrage. Webster's grouping of the prin- 
ciples on which government in America is found- 
ed differs in language rather than in thought from 
doctrines made familiar to the world largely through 
the instrumentality of Thomas Jefferson and his 
disciples — the social compact, the equality of man, 
the right of revolution. Neither science nor ex- 
perience sanctions the doctrine of the equality of 
man; yet this unscientific and a priori idea must 
unhesitatingly be accepted as one of the paramount 
forces in American democracy. It is a doctrine 
which depends for its significance largely upon 
popular enthusiasm. Yet so effective has it 
i. — b 17 



// 



Constitutional History of the American People 

proved in practical administration that it must 
be recognized as a permanent element in the 
evolution of our civil institutions. Because of 
this doctrine the full significance of the transi- 
tion from a military to a civil basis in government 
in America may be measured. And undoubtedly 
because of this doctrine there will be measured 
hereafter the true meaning of the transition now 
going on from a military to an industrial type of 
society. 

During the seventeenth century the colonists 
worked out, perhaps unconsciously, a practical 
definition of many civil rights of man. Yet sev- 
eral of these rights were to be worked out at a 
later day : as the right of freedom of speech, free- 
dom of the press, and exemptions from unwarrant- 
able searches and seizures. The period of this 
evolution may be said to terminate with the clos- 
ing years of the seventeenth century, and the 
year 1689 may be named as the time when this 
phase of the evolution of American democracy 
closed. With the opening of the eighteenth cen- 
tury popular government, though as yet latent in 
the bud, rapidly evolved in measures of adminis- 
tration, both colonial and imperial, until at length 
antagonistic interpretations of civil administration 
precipitated the American Revolution. That Rev- 
olution, which gave us our independence as a na- 
tion, was not fought to prove a theory. Rather 
was it the natural, though painful, conclusion of 
many matters which had long been in civil litiga- 
tion. It was a revolution which affected England 



Expansion of the Principles of the Revolution 

quite as much as America: for the resolution of 
civil affairs after 1776 was more liberal through- 
out the entire English-speaking world. It was a 
deadly blow to feudalism, and particularly to that 
cruel form of feudalism, the mercantile theory. 
At first reading the Revolution seems to have 
been a blow struck against the Crown. It was, 
indeed, a blow, and the Crown typified the object 
against which it was levelled, but the type was 
tyrannical industrially quite as much as politi- 
cally. It must not be forgotten that government 
is a natural product. It is a phase of the evolu- 
tion of civilization. When events have resolved 
themselves into historical perspective the truth of 
this is evident. Our fathers builded wiser than 
they knew, for they builded for all time. They~ 
who build in harmony with the natural develop- 
ment of civil institutions are building just as 
wisely./ Each generation thinks itself face to face 
with a crisis, but the crisis passes away, leaving 
many of the old problems still unsolved. The 
literature of America at the time of the Revo- 
lution of 1776 is a literature of reason and ex- 
postulation. It is a literature whose content is 
the accumulated wisdom of man. It is composite, 
comprehensive, and prophetic. Yet the true char- 
acter of the democracy of the eighteenth century 
is probably clearer to us now than to those who 
lived then. Political enfranchisement was prac- 
tically concentrated in the closing years of the 
eighteenth century, and it signified a reorganiza- 
tion of the state rather than any discovery or in- 

19 



Constitutional History of the American People 

novation in civil affairs. The cardinal doctrine 
of the time was that of the equality of men ; a 
doctrine which is profoundly ethical, but not 
profoundly intellectual. The democracy which 
evolved from that germ has applied political ideal- 
ism to the state. For this reason American de- 
mocracy is measurable not by its forms and va- 
ried functions only, but by its social efficiency. 
For this reason the national is paramount to the 
commonwealth idea. If the Americans possess 
political genius in any degree it is for adapting 
old institutions to new wants. They do not tear 
down the political edifice, but rather make such 
additions and repairs as seem necessary from time 
to time. Yet behind the mere mechanics of de- 
mocracy a true organic development is recogniz- 
able. American democracy, like Greek poetry, is 
the presentation of the whole estate of man. A 
history of the evolution of democracy in America 
must be limited to particular phases, such as the 
literary, the ethical, the industrial, or the constitu- 
tional. These elements, and others that might be 
mentioned, are co-ordinate and comprise the grand 
theme. The historian shrinks from attempting to 
trace the record of democracy in all its phases. 
He must be satisfied, and indeed thrice happy, if 
he is able to trace, even imperfectly, the record 
of a single phase. 

It is my purpose to record some constitutional 
phases of the development of American democ- 
racy. This record, fortunately, is accessible in 
forms of indisputable value and worthy of our 

20 



Sequence of Political Aspirations 

faith. Among these are the organic laws — that 
is, the body of American constitutions of govern- 
ment, which begin with the charters in the earlier 
years of the seventeenth century and continue in 
the written constitutions of our own time. Yet 
these do not contain the whole story. There are 
other laws, the work of Legislatures, and also trea- 
ties and agreements between America and other 
nations. Running through all these acts is an un- 
broken course of political thought, a commentary, 
as it were, on principles upon which the integrity 
of our institutions depends. These principles ap- 
pear in different aspects at different times. Thus, 
at the close of the eighteenth century they are 
conspicuous in bills of rights and the first written 
constitutions of the country. Later they appear 
in the effort to administer the government of the 
United States and of the commonwealths, and es- 
pecially in the discussions in State Legislatures, in 
political conventions, in Congress, in the courts, and 
in conventions which have given us the later con- 
stitutions of government. The history of Ameri- 
can democracy, therefore, is a history of political 
thought rather than of individuals. If it lacks 
feudal interest, it possesses the charm of civil 
equity. It is a history of the development of 
equal social opportunities. It is, indeed, an in- 
dustrial history in a political form. Looking back- 
ward now, we see how the crises in American af- 
fairs have terminated in a new enlightenment of 
public opinion and in a more perfect understand- 
ing of the powers, the privileges, and the duties 



Constitutional History of the American People 

of men. Democracy must be distinguished from 
ochlocracy. Popular government does not signify 
the passions of a mob. If four centuries of civili- 
zation in America have any meaning, it is that 
popular government is conscious of its solemn 
responsibilities. This consciousness is suggested 
in many ways, and perhaps in none more per- 
suasively than in the sensitiveness of American 
democracy to suffering and wrong, as the numer- 
ous benevolent institutions of the land testify. 
Few, if any, of these existed before the Declaration 
of Independence. They were founded in great 
numbers after 1850. At some time during this 
three-quarters of a century the transition was 
made, in this country, from ancient egoism to 
modern altruism. Under the old regime the only 

rties held sacred were the ties of blood ; under the 
new, the ties of humanity are equally sacred. In 
the normal development of our institutions, these 
ties will be venerated in equal degree. Already the 
military type has almost disappeared from our insti- 
tutions, and with the ascendency of the civil power 
the whole people have been enfranchised. No evi- 
dence of this enfranchisement is of profounder sig- 
nificance than the extinction of slavery, which, 
delayed for centuries, but swift at last, was an al- 
truistic process, and one inevitable in a democracy 
like our own. Ancient legislation knew little of 
"the individual except as he was a member of the 
\ most favored class. Modern legislation emanci- 
pates individuals with impartiality. The record 
of this benevolence is clearly marked in the evo- 

22 



Development of National Government 

lution of American democracy. And it is to be 
found in places in which many might not at first 
search for it. Our national government has long 
attracted and concentrated the attention of our own 
people, and, to some extent, of the people of other 
lands ; but our national government is only a part 
of our democracy. The commonwealths are in 
many respects closer to us than the nation, and do 
not so widely differ one from another as to pre- 
clude tracing the principles on which the institu- 
tions of each are founded. The colonial era, the 
beginning of government in America, may be said 
to cease with the treaty of Paris of 1763, when the 
North American continent came practically under 
the control of the Anglo-Saxon race.' From the 
treaty of Paris to the Declaration of Independence 
was a brief interval of continentalism, during which 
public opinion was for the first time formulated 
under a dominant idea. With the Declaration 
there also went out to the world the first consti- 
tutions of the States in which the best of colonial- 
ism survived, and the transition to a more perfect 
form of commonwealth organization was effected. 
These, being imperfect, soon made way for a second 
group, and with this came the national Constitu- 
tion, itself a composite, and the survival of earlier 
ideas of union. For nearly one hundred and fifty 
years before the making of the national Constitu- 
tion, the people of America had been tending 
towards industrial and political union. Although 
no perfect union was effected, many attempts were 
made, beginning with the union of the four New 

23 



Constitutional History of the American People 

England colonies in 1643, an d concluding with 
the Articles of Confederation of 1781. These at- 
tempts record the evolution of the national idea, 
and are the parent of the Constitution of 1787. 
Parallel with this growth of national ideas was 
the development of the more perfect common- 
wealth, beginning with the charters and conclud- 
ing with the first State constitutions in 1776. 
Dual political ideas thus grew up in the land, and 
their duality became a characteristic of democracy, 
plainly recognized after the treaty of Paris, and 
duly functioned in the organic laws of the States 
in the concluding years of the eighteenth century. 
This was a century of political theories and def- 
initions set forth in bills of rights which remain 
almost unchanged to our own day, and probably 
will continue to be recognized on this continent as 
the accepted statement of political and civil rights. 
Their chief quality is their recognition of the 
rights of the individual. They made the free man 
</"the centre of the civil system. Every bill of rights 
of the eighteenth century emphasized him as the 
chief element in society to be conserved. If we 
look for some formula for the conservation of the 
state, we shall not find it in the eighteenth cen- 
tury. A century later, a constitution commonly 
sets forth some rights of society, of the community, 
of the state. Another characteristic of eighteenth- 
century political thought was its emphasis of politi- 
cal theories. This was inevitable. Theory pre- 
cedes practice, especially in affairs of state, and 
colonial practice in government had been efficient 

24 



The Constitution the Parent of Parties 

chiefly in the evolution of bills of rights. The 
difference between theory and practice in govern- 
ment is well illustrated by comparing the national 
with any of the earlier State constitutions. The 
national Constitution originally contained no bill 
of rights. It was intended to be administrative, 
not theoretical, in character. It contains no def- 
inition of nationality; no definition of what is 
meant by " We, the people of the United States "; 
no definition of the exact relation between the 
Union and the States ; no definition of the precise 
limits of State or Congressional legislation. In- 
deed, it is an instrument conspicuously lacking in 
what many might seek in the supreme law of the 
land. The omission of definitions has proved 
the wisdom of its makers and the opportunity of 
posterity. It has given ample scope to the Ameri- 
can people to exercise their political genius in ad- 
justing themselves to new industrial and political 
conditions. The Constitution never laid down 
hard and fast lines of civil procedure. Yet, chiefly 
because such fundamental provisions were lacking, 
the conduct of national politics fell inevitably into 
the hands of political parties, and government be- 
came an affair of administration. Parties did not 
exist in colonial times, and they are yet in the in- 
fancy of their power. They afford full opportunity 
for the genius of individuals, and are the responsi- 
ble means by which a conscious people adjust 
themselves to changing conditions. 

A constitutional history of democracy in Amer- 
ica is, therefore, a history of political and civil 

25 



Constitutional History of the American People 

adjustments, usually recorded in laws and consti- 
tutions. The industrial and social forces which 
have determined the development of our institu- 
tions have determined the character of the law of 
the land. The first group is continental, compris- 
ing the constitutions of the Revolutionary era, 
coinciding nearly with the last twenty -five years 
of the eighteenth century. During the first half 
of the nineteenth century appear another group 
of constitutions, which record the first efforts of 
the American people to administer their theories 
of government in the light of a wider experience 
and under the compulsion and opportunities of a 
new industrial life. During this half- century the 
contending political systems of the country were 
exhaustively formulated, and attempt was made to 
solve in the forum problems later solved on the 
battle-field. From 1850 to 1876 was the era of a 
counter-revolution, during which public opinion 
formulated the thought of the new nation. Later 
constitutions are a recognition, by the people of 
the United States, of the true character of social 
efficiency of a national type. The people applied 
their notions not only by amending the national 
Constitution, but also by changing the constitu- 
tions of many of the States. After 1876, and dur- 
ing the remaining years of the nineteenth century, 
industrial reforms were attempted through the 
agency of these supreme laws. Industrial enfran- 
( chisement compelled a reorganization of the state, 
Which was carefully recorded in its supreme law. 
Democracy is equally interested in the state and in 

26 



The Altruism of Democracy 

the citizen. Until recent years it seemed inter- s 
ested in the citizen only. It tolerated the state as 
an evil necessary for his welfare. The history of 
democracy is, therefore, chiefly of the citizen : his 
theories, his complaints, his political strivings, his 
victories, his disappointments. The important 
chapters in that history are on the franchise, on 
representation, on the powers of public servants. 
The state, until recent years, has been conceived as 
a creation rather than an organism ; as a compact 
rather than as an entity. Its functions are large- 
ly a discovery of the nineteenth century. Some 
may say that the modern state is not so much a 
discovery as a new resolution of social forces. 
Whatever be the form in which we cast the thought, 
the fact remains — and, in this country, is evident — 
after comparing the last State constitutions with 
the first. If the change be evolution, it is from 
citizen to society; from the concept of govern- 
ment, as established solely for the benefit of the 
individual, to the concept of the community, the 
state as a being responsible to every citizen and 
to society. The state has rights which the indi- 
vidual is now bound to respect. Like him, it is, 
or should be, altruistic. As the centuries pass, 
the American commonwealths will revise their 
constitutions. Thus far there has been, on the 
average, a new State constitution every year since 
1776. Propositions for new ones have been more 
frequent ; amendments, a common occurrence. 
The ease with which amendments, revisions, or 
even new constitutions are secured, suggests that 

27 



Constitutional History of the American People 

the people, like Jefferson, regard a constitution 
as of little higher authority than an act of the 
Legislature. 

Every political campaign in which great issues 
are involved has led to some change in State con- 
stitutions, and not infrequently to new ones. 
This was conspicuous between 1830 and 1840, 
when franchise reforms that had been agitated for 
a generation were embodied in constitutional re- 
vision; again, from i860 to 1870, when reforms in 
the franchise and in the basis of representation 
were carried into every constitution in the country; 
and again from 1889 to 1895, when economic re- 
forms affecting labor, transportation, capital, and 
the franchise, were embodied in the constitutions 
of the Northwestern States. Other changes have 
during the century been made affecting the powers 
of the Legislature and of Governors, the manner 
of choosing judges, the organization of the ad- 
ministrative department, finance, education, and 
local government. 

As has been said of the state, so may it be said 
of all these changes — they were once a private 
thought. It is the purpose of a history of democ- 
racy to make the state a private thought again. 



CHAPTER II 

THE FORM OF DEMOCRACY IN THE 
EIGHTEENTH CENTURY 

In the closing years of the seventeenth century 
North America gave little promise of becoming a 
continent of commonwealths.* Along the Atlan- 
tic coast extended the English colonies, inhabited 

* The principal authorities for this chapter are the State con- 
stitutions and laws, 1775-1800, and the proceedings of conven- 
tions during this period : 

Maryland. — Proceedings of the Conventions of the Province of 
Maryland, held at the City of Annapolis in 1774, 1775, and 1776. 
Baltimore : James Lucas & E. K. Deaver. Annapolis : Jonas 
Green, 1836, 8vo, 378 pp. 

Massachusetts. — Journal of the Convention for Framing a 
Constitution of Government for the State of Massachusetts Bay, 
from the Commencement of their First Session, September 1, 
1779, to the Close of their Last Session, June 16, 1780, Including 
a List of the Members. With an Appendix — containing: 1. The 
Resolve for Ascertaining the Sense of the People on the Subject 
of a New Constitution. 2. The Form of Government Originally 
Reported by the General Committee of the Convention. 3. The 
Address to the People. 4. The Constitution as finally Agreed 
upon by the Convention, and Ratified by the People, with the 
Amendments since Adopted. 5. The Rejected Constitution of 
1778. Published by Order of the Legislature. Boston: Dutton 
& Wentworth, Printers to the State, 1832, 8vo, 264 pp. 

New Hampshire. — Journal of Colonial Congress, December 21, 
1775, to January 5, 1776. Historical Magazine, October, 1868, 
pp. 1 45-1 54. Collections of the New Hampshire Historical Society, 
Vol. iv. State Papers of New Hampshire, Edited by Albert Still- 

29 



Constitutional History of the American People 

by about three hundred thousand people, Anglo- 
Saxon stock predominating — a smaller population 
than may now be found in some Congressional dis- 
tricts. England claimed territory to the South Sea, 

man Batchellor, Vols, xx., xxi., xxii. Provincial Papers of New 
Hampshire, Vols, vii., viii. Journal of the Convention which 
Assembled in Concord to Revise the Constitution of New Hamp- 
shire, 1 791-1792. Edited by Nathaniel Bouton, D.D. Concord: 
Edward A. Jenks, State Printer, 1876, 8vo, 198 pp. 

New Jersey. — Extracts from the Journal of Proceedings of 
the Provincial Congress of New Jersey, held at Trenton in the 
months of May, June, and August, 1775. Published by Order. Bur- 
lington: Printed and Sold by Isaac Collins, mdcclxxv., Wood- 
bury, N. J. Reprinted by Order. Joseph Sailer, Printer, 1835, 
8vo, 241 pp. Journal of the Votes and Proceedings of the Con- 
vention of New Jersey, Begun at Burlington, the tenth of June, 
1776, and thence continued by Adjournment at Trenton and New 
Brunswick to the twenty-first of August, following. To which is 
annexed Sundry Ordinances, and the Constitution. Published 
by Order. Burlington : Printed and Sold by Isaac Collins, 
mdcclxxvi. Trenton : Reprinted by Order. Joseph Justice, 
Printer, 1831, 8vo, 100 pp. Eumenes, being a Collection of Pa- 
pers, written for the Purpose of Exhibiting some of the more 
prominent Errors and Omissions of the Constitution of New 
Jersey, as Established on the Second day of July, one thousand 
seven hundred and seventy-six ; and to prove the necessity of 
Calling a Convention for Revision and Amendment. Trenton : 
Printed by G. Craft, 1799, 8vo, 149 pp. 

New York.— Journals of the Provincial Congress, Provincial 
Convention, Committee of Safety, and Council of Safety of the 
State of New York, 1775, 1776, 1777. Albany : Printed by Thur- 
low Weed, Printer to the State, 1842, Vol. i., Large Folio, 1196 
pp. See also some account of the making of the New York 
Constitution of 1777 in pp. 691-696 of Reports of the Proceedings 
and Debates of the Convention of 1821, Assembled for the Pur- 
pose of Amending the Constitution of the State of New York : 
Containing all the official Documents Relating to the Subject, 
and other valuable matteV, by Nathaniel H. Carter and William 
L. Stone, Reporters ; and Marcus T. C. Gould, Stenographer. 
Albany: Printed and published by E. & E. Hosford, 1821, 8vo, 
703 pp. 

3° 






Contending Forces for Supremacy 

but was not in possession beyond the Alleghanies. 
From these mountains westward farther than any 
white man had explored, was New France, compris- 
ing the vast region drained by the rivers St. Law- 
North Carolina. — The Journal of the Proceedings of the Pro- 
vincial Congress of North Carolina, held at Halifax, the twelfth 
day of November, 1776, together with the Declaration of Rights, 
Constitution, and Ordinances of Congress. Newbern : Print- 
ed by James Davis, 1777, Small 4to, 84 pp. (Sabin, 394, c. 
55.632). 

Pennsylvania. — The Proceedings Relative to Calling the Con- 
ventions of 1776 and 1790, the Minutes of the Convention that 
formed the Present Constitution of Pennsylvania, together with 
the Charter to William Penn,the Constitutions of 1776 and 1790, 
and a View of the Proceedings of the Convention of 1776, and 
the Council of Censors. Harrisburg : Printed by John S. Wrest- 
ling, Market Street, 1825, 8vo, 384 + i v. pp. Minutes of the 
Convention of the Commonwealth of Pennsylvania which com- 
menced at Philadelphia, on Tuesday the twenty-fourth Day of 
November, in the year of our Lord one thousand seven hundred 
and eighty-nine, for the Purpose of Reviewing, and if they see 
occasion, Altering and Amending the Constitution of this State. 
Philadelphia : Printed by Zachariah Poulson, Jr., in Fourth 
Street, between Market Street and Arch Street, mdcclxxxix., 
folio, First Session, 147 pp.; Second Session, 147-222. Minutes of 
the Grand Committee of the Same, folio, 107 pp. 

Tennessee. — Journal of the Proceedings of a Convention Begun 
and Held at Knoxville, January 11, 1796. Knoxville : Printed by 
George Roulstone, 1796. Nashville: Reprinted by McKennie 
& Brown, True Whig Office, 1852, 8vo, 32 pp. 

Vermont. — Vermont State Papers, being a Collection of Rec- 
ords and Documents connected with the Assumption and Es- 
tablishment of Government by the People of Vermont, together 
with the Journal of the Council of Safety, the first Constitution, 
the early Journals of the General Assembly, and the Laws from 
the year 1779 to 1786 inclusive. To which are added the Pro- 
ceedings of the First and Second Councils of Censors. Compiled 
and published by William Slade, Jr., Secretary of State. Middle- 
burg: J. W. Copeland, Printer, 1823, 8vo, 567 pp. Collections of 
the Vermont Historical Society, Vol. i. Montpelier: Printed for 
the Society, 1870, 508 pp. Vol. ii., Id., 1871, 530 pp. In Vol. i., 

3i 



Constitutional History of the American People 

rence and Mississippi and their tributaries. Farther 
southward and westward lay New Spain, greater 
in area than New France. The English feared 
two foes — absolutism and the papacy, and were on 
the defensive. The struggle which for centuries 
had raged in the Old World between absolutism 
and democracy broke out in the New at the close 
of the seventeenth century. Antagonistic systems 
of government were contesting for the possession of 
America. In the English colonies were the germs 
of representative government and free common- 
wealths. The fate of half the globe depended 
on what victories might be won in the Ohio Val- 
ley. In decisive results, Wolf's victory on the 
Heights of Abraham was to take rank with 
Marathon and Cannae. Probably, the pioneers 
who, during the long campaign from Braddock's 
defeat to Yorktown, won America for liberty 

the Conventions of 1 776-1 777. In Vol. ii., Vermont as a Sover- 
eign and Independent State. 

Virginia. — The Proceedings of the Convention of Delegates 
for the Counties and Corporations in the Colony of Virginia, 
held at Richmond Town, in the County of Henrico, on the 20th 
of March, 1775. Reprinted by a Resolution of the House of Del- 
egates, of the 24th February, 1816. Richmond: Richie, True- 
heart & Du-Val, Printers, 18 16, folio, 54 pp. The Proceedings 
of the Same on Friday, the 1st of December, 1775, and after- 
wards by Adjournment in the City of Williamsburg, Id. and lb., 
folio, 116 pp. The Proceedings of the Same in Williamsburg, on 
Monday, the 6th of May, 1776, Id. and lb., folio, 86 pp. Ordi- 
nances Passed at a General Convention of Delegates and Repre- 
sentatives from the several Counties and Corporations of Vir- 
ginia, held at the Capitol in the City of Williamsburg, on Monday, 
the 6th of May, Anno Dom., 1776. Reprinted by a Resolution 
of the House of Delegates, of the 24th February, 1816. Rich- 
mond, supra, folio, 19 pp. 

32 



Growth of Popular Government 

never compassed the magnitude of the drama in 
which their sufferings and their victories were 
early scenes. They were men much like our- 
selves, and the emotions that stirred their lives, the 
services they rendered, the ideas for which they 
contended, the record which they made in found- 
ing new States and a new nation are elemental 
forces in democracy in America to-day. They 
bequeathed to us the heritage of representative 
government. 

Time has obscured their action, as it obscures 
the deeds of all men. But the political institu- 
tions which sprang up after them, though feeble 
and isolated at first, unwelcome to the govern- 
ments of the Old World, and, when by necessity ac- 
knowledged as a new power, coldly received into 
the family of nations, were destined to overspread a 
continent and to demonstrate, for the first time, 
the vitality and efficiency of popular government 
on a vast scale. During the seventeenth century, 
and the greater part of the eighteenth, the col- 
onies prospered under charters granted by the 
Crown and in substance differing little one from 
another. The charter to Penn contained a unique 
provision recognizing the right of Parliament to 
levy a tax on the colony.* Most fateful for the 
colonies was the privilege of the Assemblies to pass 
laws that should conform as nearly as possible 
with the laws of England. Here was the entering 

* Charter to Penn, March 4, 1681, sec. 20. Proceedings of 
conventions of 1776 and 1789. Pennsylvania, Harrisburg, 1825, 
p. 16. 

i.— c 33 



Constitutional History of the American People 

wedge of democracy in America. Gradually, and 
it may be said naturally, the Assemblies assumed 
the right to judge when a law should be more 
American than English. This claim of right was 
the foundation of American independence. 

From their incorporation, therefore, the colonies, 
though fairly uniform in general character, tended 
to differ among themselves in local government. 
The local spirit was from the first stronger than 
the continental, and doubtless would have prevailed 
had not James the Second attempted to merge the 
colonies into groups, each having its civil system, 
with ultimate merger in a government whose ex- 
ecutive and judiciary should be appointed by the 
Crown ; whose common Assembly, though elected 
by the people, should be stripped of all discre- 
tionary authority. To the colonists this was ab- 
solutism, and, consciously or unconsciously, their 
opposition to it awakened a continental spirit, the 
parent of the national idea. Thus, before the close 
of the seventeenth century America was at the 
threshold of a new civil experience, the distinguish- 
ing: feature of which was the formulation of the 
" ancient and undoubted rights of the people of 
the colonies." A like process was going on in 
England. The famous Bill of Rights of 1688 is con- 
temporaneous with like measures in the colonies. 
Americans are more familiar with the political 
speculations that dominated the country in 1776 
than with those, equal in influence, that dominated 
it nearly a century earlier. One clause of the Eng- 
lish bill of 1688 survives in its original form in the 

34 



Forebodings of the Revolution 

Constitution of the United States * and in many 
State constitutions ; but it was not accompanied in 
the seventeenth century by those provisions with 
which it is now associated. Freedom of worship, 
freedom of speech, and freedom of the press are 
rights which were worked out in this country — 
that is to say, they were worked out in that Anglo- 
Saxon world which is divided into two parts — Eng- 
land and America. They are rights which in no 
sense are of Celtic or Latin origin. On them, and 
those soon worked out with them, rests all consti- 
tutional government in America. The New York 
Assembly in 1689, in spite of the opposition of 
the Crown, set forth for the first time in a formal 
bill on this continent those rights which became 
the foundation for political ideas involved in the 
American Revolution.! This Assembly was the 
parent of that portion of the American constitu- 
tions of government which we call the Declaration 
of Rights — the most permanent part of our civil 
system. The ideas involved in them were the 
issue in the struggle of England, France, and 
Spain for the possession of America. The first 
phase of this struggle was international, and closed 
with the treaty of Paris and the disappearance of 
New France from the map of America. Thirteen 
years passed and a new name appeared — the 

* Art. viii. 

t In most of the charters ; those of Virginia (1606) and Mas- 
sachusetts (1629) are typical. The Assemblies early began to 
" confirm the charters " — i. e., Magna Charta and the Charter of 
the Forest — as in Rhode Island, 1663; North Carolina, twenty- 
five times, etc. See Martin's Laws, North Carolina, 1792. 

35 



Constitutional History of the American People 

United States. Colonies had become common- 
wealths, organized on the basis of these ancient 
rights which, save in Rhode Island, had been 
formally adopted as the essential part of a written 
constitution. Each proposition recorded a victory 
of democracy over monarchy — of individualism 
over absolutism. Therefore every clause is a sur- 
vival, in brief, of struggles that go back well towards 
the earliest moments of recorded time. Bills of 
rights, the portion of the supreme law which seems 
to many trite, if not superfluous, are the summary 
of ages of struggle for human rights. In America, 
the Virginia bill, compiled chiefly by George 
Mason, records the close of an initial chapter in 
the history of democracy. We shall see, later, how 
the chapter has been continued, and from what 
sources it is derived. Each generation of Ameri- 
cans has added to it. Individualism — and, later, 
communalism — are there. In our day the grinding 
necessity of industrial morality is adding clauses 
of a nature undreamed of when the New York 
Assembly enacted its epoch-making bill, or when, 
a little less than a century later, Mason wrote the 
Virginia Declaration. In the State constitutions 
many provisions respecting the legislative, the ex- 
ecutive, and the judiciary prove to be temporary. 
Nearly every provision in the various declarations 
of rights has proved to be essential to the stabil- 
ity of representative government. The growth of 
our bills of rights is, therefore, indexical of the 
charter of the American state. 

As France and Spain, in turn, retired from 

36 



State Constitutions the Product of Time 

North America, the English-speaking race was 
left with a continent on its hands whereon repre- 
sentative government might freely develop. This 
opportunity of democracy is without parallel in 
history. For the first time, as events proved, pop- 
ular government on a vast scale was to be put to 
the test. When the transition from colonies to 
commonwealths came, it seems, at first glance, al- 
most instantaneous. The State constitutions of 
1776 seem struck off at a single stroke in a sense 
that is not true of the national Constitution. A 
little reflection, however, will demonstrate that the 
constitutions, State and national, which distinguish 
America during the last quarter of the eighteenth 
century are in no sense political miracles or the 
product of chance or sudden ideas. These instru- 
ments must be taken, in the aggregate, as the 
written form of a political organism long growing 
and essentially homogeneous. They give the po- 
litical fabric a common pattern. They register 
the civil experience, not of the colonists only, but 
of the people of other and earlier times. They 
may be called chapters in the Bible of politics 
contributed by democracy in America. There- 
fore, they must be considered together as a politi- 
cal unit, whose details are local applications of a 
few common principles contained in the bills of 
rights. 

These constitutions have a common origin in 
experience and speculation — the experience chiefly 
that of the colonists themselves ; the speculation 
that of a few philosophers, of whom Montesquieu 

37 



Constitutional History of the American People 

was most influential. Gradually the ancient civil 
rights of Englishmen, made familiar by charters, 
came to be considered as natural. Long exercise 
of charter rights made the notion easy — however 
unphilosophical. Colonial isolation compelled a 
liberal interpretation of the clause in the charters 
permitting Assemblies to pass laws as nearly as 
may be in conformity with the laws of England. 
There could be but one consequence — the Ameri- 
cans would ultimately claim that their own Assem- 
blies possessed the exclusive right, constitution- 
ally, to impose taxes, and that local circumstances 
forbade colonial representation in Parliament. 

The Americans had a century and a half of 
experience in popular government when the first 
State constitutions were made. During this time 
they worked out the principles embodied in their 
first bills of rights, and accumulated an admin- 
istrative experience which they reduced to three 
working formulas : the articles on the legislative, 
on the executive, and on the judiciary. These ar- 
ticles are essentially a political photograph of the 
colonial governments in those last days, just be- 
fore transformation into States. But it must not 
be forgotten that the photograph was corrected, 
as it were, by adding ideals. Compared with con- 
stitutions made at the close of the nineteenth cen- 
tury, these of the eighteenth seemed colonial rath- 
er than commonwealth in character. 

In as far as they departed from colonial expe- 
rience, they show the influence of Montesquieu. 
His Spirit of Laws was published in 1748, and its 

38 



Montesquieu's Influence on Our Constitution 

influence on America was like that of Aristotle's 
Politics on the institutions of Europe. The com- 
monwealth constitutions of the eighteenth cen- 
tury were made, nominally, by conventions, though 
in many instances by Legislatures. It may be said 
that the twenty-six constitutions of the period were 
thought out by about the same number of men — 
the most eminent Americans of the age. Most of 
these met in the convention that made the na- 
tional Constitution. They had already partici- 
pated in a similar work for their own States, and 
some of them assisted in revising their State 
constitutions after the national Constitution was 
adopted and the new government was established. 

To these men the Spirit of Laws was a manual 
of politics powerfully contributing to a general 
unity of sentiment in the State instruments, and 
particularly in the Constitution of the United 
States. In spite of popular disbelief, it is the phil- 
osophical thinker who regulates the form of the 
state. He works out a civil economy, which, cor- 
rected by popular experience, at last becomes the 
form of government in the state. Of less, though 
of great influence on American institutions, were 
Milton, Hobbes, Locke, Sidney, Harrington, and 
Penn. The best of their political speculations 
became the common intellectual property of 
thoughtful Americans, and in political form were 
incorporated in the constitutions of the eigh- 
teenth century, and, slightly modified, are found 
in all that have been adopted since. 

Twenty - five years later than Montesquieu's 

39 



Constitutional History of the American People 

Spirit of Laws, appeared Blackstone's Commenta- 
ries — destined at once to become the principal 
legal text-book of the English race. In spite of 
its ultra - monarchical ideas, it profoundly influ- 
enced American political thought.* Montesquieu 
was speculative ; Blackstone, practical and defini- 
tive. The Commentaries, as did no other book, as- 
sisted American statesmen in giving legal form to 
democratic ideas of government. The American 
Revolution would have wholly miscarried had its 
principles failed to attain expression in legal 
form : so much are men controlled by appear- 
ances. This is well illustrated in a statement in 
the Declaration of Independence, and repeated in 
every State constitution, that the people have the 
right to alter or abolish any form of government 
that they judge destructive of their rights. All 
the eighteenth-century writers emphasize the im- 
portance of the form of the government; the form 
is considered as essential to the right exercise of 
civil functions. Though acknowledging the right 
of the people to change the form, neither the con- 
stitutions of the period nor the writers upon them 
hint at any right to alter or abolish the principles 
on which the form rests. That the monarchical 
Blackstone so practically contributed to the es- 
tablishment of democracy in America is a para- 
dox not without parallel in history. 

Two other English philosophers whose works 

* The first American edition, in four volumes, was brought out 
in Philadelphia, by Robert Bell, in 1771. 

40 



Voltaire and Franklin Considered 

appeared with Blackstone's, at the outbreak of the 
Revolution, profoundly influenced American insti- 
tutions. Hume anticipated both the French and 
the American revolutions, and Adam Smith* antic- 
ipated the economic course of American life. The 
most subtle influence on America was wielded by 
him, to whom, says Lowell, " more than to any 
other one man we owe it that we can now think 
and speak as we choose."! Voltaire's influence was 
that of an institution rather than that of an in- 
dividual. It largely contributes to that seculari- 
zation of the state which distinguishes government 
in America from all other governments, ancient 
or modern. 

America was not lacking instruction from a 
philosopher of native birth, Franklin, who was 
scarcely less influential than any of his contempo- 
raries.:}: The characteristic of the political thought 
of the age was individualism. The state was called 
into existence to protect the individual. This is 
the dominant idea of every bill of rights of the 
eighteenth century, and indeed of all until recent 
years. The state is not described at that time as 
having " ancient and undoubted rights " which the 

* Washington annotated his copy of Smith, showing careful 
reading. It now belongs to Joseph Wharton, Esq., of Philadel- 
phia. For an estimate of the influence of The Wealth of Nations, 
see Lecky's History, Vol. iv., p. 328. 

t Latest Literary Essays (Gray), 1892, p. 12. 

\ Smith read chapters of The Wealth of Nations to Doctor 
Franklin, as it was composed, for his criticism. This may ex- 
plain the numerous allusions to America in the work. See Wat- 
son's Annals of Philadelphia, Vol. i., p. 533. 

4i 



Constitutional History of the American People 

individual must respect. He was the centre of the 
political system. The altruistic function of the in- 
dividual citizen which is implied and occasionally 
expressed in the later constitutions was not thought 
of in Franklin's day, and it was a long day from 
the accession of Queen Anne to the death of 
Franklin. His ideas are characteristic of a cen- 
tury later, in that he emphasized the administra- 
tion rather than the theory of government. His 
oft- quoted speech in the Federal Convention, in 
which he said that there is no form of government 
that may not be a blessing to the people if well 
administered, suggests the test to which every 
political proposition must at last be subjected. 
It is the test which best discloses the difference 
between the American and the French constitu- 
tions of government. Ours rarely contains a def- 
inition, and more rarely political speculation, but 
is practical and administrative in character. Be- 
cause of this quality, the national Constitution has 
survived the fiercest test to which it is possible 
to submit a political system, the ordeal of civil 
war. Had it been a document abounding in po- 
litical speculation it would now be known only to 
the collector of curious schemes of government. 
Franklin's individualism ultimately found political 
application in the essential doctrines of that great 
party of which Jefferson is commonly called the 
founder. His influence for this reason has been, 
and to this day is, confounded with that of Jeffer- 
son and Voltaire. It differed from theirs in be- 
ing more conservative. Its conservatism consisted 

42 



Jefferson and the Rights of Man 

in its sanity. His conception of government was 
one based on experience and " adapted to such a 
country as ours." The import of Franklins em- 
phasis of the administrative test is seen in the 
constitutions adopted after 1850, in which the ad- 
ministrative gradually appears as a separate arti- 
cle. After 1876 it begins to be recognized as 
the fourth department of government, ranking 
with the legislative, the executive, and the judi- 
ciary. The history of this new department is one 
of civil adjustments. To ascertain, readily, the im- 
portant changes in our political institutions since 
1776, one must turn to the administrative provi- 
sions of State constitutions last adopted and trace 
their growth from constitution to constitution 
during the intervening years. 

In later years, when the very form of a State 
constitution became a party question, the influ- 
ence of Jefferson largely dominated American 
thought. He stood for the rights of man as these 
were expressed in the Declaration of Indepen- 
dence, or were read into it by party interpretation. 
During the eighteenth century his influence fell 
far short of what it became after the party he was 
instrumental in organizing obtained possession of 
the national government. During the half cen- 
tury following his death, when in one form or an- 
other slavery and State sovereignty were national 
issues, and the extension of the franchise and the 
change from property to persons as the basis 
of representation were State issues, Jefferson was 
idealized as the political philosopher and reformer, 

43 



Constitutional History of the American People 

and his ideas, as interpreted by a powerful party, 
were of paramount influence in many States. But 
his influence was always strongest in the newer 
parts of the country. The Declaration of Inde- 
pendence was almost immediately accepted as a 
national bill of rights ; it was cited in several State 
constitutions, and was prefixed without change to 
the constitution of New York of 1777. 

The Revolution was a reconstruction of the the- 
ory of the state. Henceforth the rights of men 
should be considered to be natural and inherent, 
and not, as before, a grant from the Crown. In 
England, the Revolution of 1688 resolved the state 
into a constitutional monarchy ; in America, a cen- 
tury later, it was resolved into a representative de- 
mocracy. The change implied a far-reaching 
reorganization. The concept of sovereignty was 
shifted to new ground. The common law was in- 
applicable to the new order. Written constitu- 
tions and statutes were necessary to give legality 
to the new concept. Had there been no change 
in the idea of sovereignty, there would have been 
no written constitutions in America. The bills 
of rights settled the question of sovereignty. The 
will of a majority of the electors became the Amer- 
ican sovereign. The written constitution was de- 
vised to secure the new dynasty and prevent an 
interregnum. Primarily the purpose was to pre- 
serve the authority of the majority, and constitu- 
tions prescribed the conditions for belonging to 
the new sovereignty by defining the electorate ; 
they also regulated the general conduct of the 

44 



When All Were for the State 

sovereign by defining the basis of representation 
and the function of the executive and the judi- 
ciary. 

The change from monarchy to democracy in- 
volved the adoption of legal fictions as dynastic 
facts. It compelled the adoption of what was 
familiarly called, in the eighteenth century, the 
system of checks and balances. The government 
— the state — must be secured against the folly, the 
designs, the passions of those who compose it. 
As was said — the people must be protected against 
themselves. The twenty-six constitutions of the 
eighteenth century were made, therefore, to be in- 
dependent of political parties. They should be 
administrable with advantage to the state what- 
ever party might be in power. This accounts for 
the silence as to parties in all the eighteenth-cen- 
tury conventions. We know little of what was 
done and less of what was said in the State con- 
ventions of that time. The debates in the federal 
convention, as they have come down to us, con- 
tain scarcely a reference to political parties. But 
there is abundant evidence that all the conven- 
tions sought to conserve government by an elab- 
orate system of checks and balances in a written 
constitution. John Adams, in his exhaustive dis- 
cussion of the American constitutions, makes the 
device of checks and balances the chief merit of 
the American system of government. Hamilton, 
Madison, and Jay, in The Federalist, exalt the de- 
vice as the guarantee of republican government. 
The same idea is elaborated later by Marshall, 

45 



Constitutional History of the American People 

Webster, and Calhoun. After 1850 less is heard 
of checks and balances in our government, and in 
our day the phrase is not in use among the peo- 
ple and has dropped out of the vocabulary of 
politics. The men who made the first constitu- 
tions emphasized the device because they were 
compelled to adopt a substitute for administrative 
experience. The new constitutions were at best 
only experiments. None of them worked wholly 
as was anticipated. It is only necessary to cite 
in illustration the electoral college and the origi- 
nal, unlimited grant of power to the State Legisla- 
tures. But even the exception proved the rule, 
and the constitutions proved on the whole adminis- 
trable and satisfactory. The State has been con- 
served, and the purposes for which the constitu- 
tions were framed — typically set forth in the 
preamble to the national Constitution — have been 
fairly well realized. Statesmen of the eighteenth 
century would impute this to the efficacy of the 
system of checks and balances. By this they 
meant the distinct functions of the executive, the 
legislative, and the judiciary ; the different ways in 
which they are chosen ; the different times when 
they hand over their power to their successors; 
the peculiar combination of the legislative and the 
executive in the administration of government, and 
the ultimate responsibility of all public servants to 
the electors. 

This correlation of parts and functions is the 
peculiarity of the American system. Though 
arbitrary and ever subject to modification at the 

46 






Present Concepts of American Institutions 

will of the people, the system has been tried with 
success, has never departed from the principles on 
which it was founded, and has strengthened the 
conservatism which ever underlies American poli- 
tics. 

One commenting on government in America 
to-day would not be likely to call attention to, 
much less to emphasize, the system of checks and 
balances. He would attribute the virtue of our 
institutions to economic and sociological causes. 
He would dwell on the people, not on the system. 
He would analyze political parties, public opinion, 
and our social institutions. He would not be 
likely even to use the term checks and balances. 
In the eighteenth century government was con-' 
ceived as a device ; in our times it is thought of 
rather as an organism. It is the content, not the 
language, of the Constitution that has changed. 
The supreme law, as time goes on, is given more 
and more an economic interpretation. If adapted 
to the wants of the country, such interpretation 
becomes a party doctrine, and if adopted by the 
majority, it becomes an administrative measure. 
If it is believed to involve essential rights, it may 
become a part of a revised constitution. Thus, 
at last, the constitutions become the depository 
of settled politics and the register of the growth 
of the State. 

The basis for legal defence of the Revolution 
was the claim by the Americans that King George 
had violated the compact to which he and the col- 
onies were parties. It was first broached in 1774 

47 



Constitutional History of the American People 

in the Suffolk Convention,* and was quickly rec- 
ognized by Adams and Otis as the place of be- 
ginning in establishing legal boundaries for the 
Revolution. It in great measure explains why 
American constitutions began with this definition 
J of the state as a social compact. Coupled with the 
doctrine of natural rights, the social-compact the- 
ory proved administrate. On these two ideas 
government in America, both State and national, 
rests. When the transition from colony to com- 
monwealth was effected, two years later, and the 
first constitutions were made, these two ideas be- 
came the nucleus of government. In this way 
the Americans succeeded, at least to their own 
satisfaction, in putting the King in the wrong. 
They declared that he had violated the compact, 
and therefore all political connection with Great 
Britain was dissolved. The colonies claimed that, 
thus left in a state of nature, they were free to 
organize governments to suit themselves. If not 
sovereign, they were free and independent. New 
Jersey, the first to adopt a constitution, and South 
Carolina, made provision that if Great Britain 
adjusted colonial differences, their constitutions 
should be of no effect.! With these two excep- 
tions, the colonies entered upon the organization 
of State governments. The permanent features 

* Journals, Provincial Congress, Massachusetts, p. 601 ; and, 
specially, of the Hampshire Convention, p. 619. For definition 
of the "social compact" see Constitutions, Massachusetts, 1780; 
Maryland, 1776; Kentucky, 1792, 1799. 

t New Jersey, South Carolina, New Hampshire, 1776; all con- 
ditional constitutions. 

48 



All Authority Emanates from the People 

of these constitutions were their declarations of 
rights and the threefold division of government. 
In the aggregate, the declarations comprise about 
one hundred provisions, all of which are not 
found in any one constitution. The typical dec- 
laration is that of Virginia of 1776, which, by 
repeated adoption, has long since become com- 
mon, civil property.* It consists of sixteen ar- 
ticles, all of which rest for authority on the doc- 
trine of natural rights proclaimed in the opening 
clause. Men cannot be deprived of their rights, 
nor can they deprive their posterity of them; 
all power is vested in the people, and is derived 
from them. Consequently, their representatives 
are their trustees and servants, and at all times 
amenable to them. As government is instituted 
for the common benefit, it must be organized in 
the form that is best "capable of producing the 
greatest degree of happiness and safety, and is 
most effectually secured against the dangers of 
maladministration." It follows that, if the form 
of the government does not subserve this end, the 
" majority of the community have an indubitable, 
inalienable, and indefeasible right to reform, alter, 
or abolish it in such manner as shall be judged 
most conducive to the public weal." No man can 
be conceived to be "entitled to exclusive or sepa- 
rate emoluments or privileges from the community 

* See Grigsby's Virginia Convention, 1776; Richmond, 1855; 
also Joint Resolution of Virginia Legislature accepting manu- 
script of this Declaration of Rights in Mason's handwriting, 
and depositing it in State archives, February 15, 1844. 
1.— D 49 



Constitutional History of the American People 

but in consideration of public service." The same 
doctrine also compels the conclusion that official 
emoluments and privileges are not descendible, 
and that the office of magistrate, legislator, or 
judge cannot be hereditary. 

The doctrine of natural rights applied in ad- 
ministration compels the separation of legislative, 
executive, and judicial powers. Elections must be 
frequent that the sovereign people may the more 
perfectly express their will in the choice of public 
servants. There must be rotation in office. In 
order to secure equity in the administration of the 
government, elections must be free and the elec- 
torate accurately defined ; but the Virginia decla- 
ration went no further than to include in it all 
men having sufficient evidence of permanent, com- 
mon interest with the community, and attachment 
to it: by which was meant a property qualification. 
These are entitled to the right of suffrage. No 
man can be taxed or deprived of his property for 
public uses without his own consent or that of his 
chosen representatives. The doctrine of the right 
of revolution was carried further than to-day — that 
none are " bound by any law to which they have 
not in like manner assented for the public good." 
A relic of the revolt from executive tyranny in 
colonial times was preserved in the clause that all 
power of suspending laws or their execution by 
any authority without the consent of the repre- 
sentatives of the people, is injurious to popular 
rights. Yet it is somewhat difficult to conceive 
how any authority in a democracy founded on 

5° 



The Struggle for Trial by Jury 

the doctrine of natural rights could thus injure 
the rights of the people, for by this doctrine the 
executive, the legislative, and the judiciary are of 
equal rank. The long struggle for the right of 
trial by jury culminated in the insertion in each 
of the constitutions of a provision for the trial 
according to the law of the land of a person ac- 
cused of capital or criminal offence, giving him the 
right to demand the cause and nature of his accu- 
sation, and to be confronted by his accusers and 
their witnesses, empowering him to call for evi- 
dence in his own favor, and entitling him to a 
speedy trial by a competent jury of the vicinage. 
No eighteenth - century constitutions permitted 
any other than the unanimous verdict of a jury of 
twelve men — a requirement from which later con- 
stitutions have freely departed. 

Among the complaints of the American people 
formally set forth by Jefferson in the Declaration 
of Independence, is that of unwarrantable searches 
and seizures made by British officers. So palpable 
a violation of feelings and rights was the imme- 
diate origin of clauses in the bills of rights de- 
claring such searches and seizures under general 
warrant unconstitutional. 

It would be expected that a people who based 
their political fabric upon the doctrine of natural 
rights, and who were accustomed freely to express 
their individual opinions on all subjects, would de- 
clare freedom of the press to be one of the bul- 
warks of liberty and a constitutional right. 

Among complaints of long standing in Amer- 

51 



Constitutional History of the American People 

ica at the time of the Declaration of Indepen- 
dence were the treatment of the colonial militia 
by the British government, and particularly the 
discrimination in favor of royal troops. For 
more than a century the Americans had claimed 
that by their charters they were empowered 
to protect themselves — an idea out of which 
evolved the political doctrine set forth in the 
declarations of rights, that the natural and safe 
defence of a free state is its militia, composed 
of the body of its people trained to arms. The 
doctrine is the application to the state of the in- 
dividual's right of self-defence. The old contro- 
versy between King and colonists over the relative 
rank of the civil and the military power was for- 
ever settled by the common provision that the mili- 
tary should always be under strict subordination 
to the civil power. Lest the doctrine of natural 
rights should be made to prove too much and be- 
come the authority for anarchy, the Virginia bill 
declared that the people had " a right to uniform 
government ; and therefore that no government 
independent of the government of Virginia ought 
to be erected or established within the limits" of 
the State — a provision found in no other consti- 
tution. This doctrine, which is essentially that of 
the centralization of civil authority, stands in 
strong contrast with the later doctrine of secession. 
Common to all the constitutions was a statement 
of the necessity of " a frequent recurrence to fun- 
damental principles "; which may be interpreted 
to mean practically a campaign of political edu- 

52 



Christian Doctrine in the Constitutions 

cation. There is a touch of Franklin's philosophy 
in the provision that these principles can be pre- 
served only " by a firm adherence to justice, mod- 
eration, temperance, frugality, and virtue." Prob- 
ably that spirit which moved the authors of the 
association of 1774 to advise their countrymen 
to discountenance and discourage extravagance 
and dissipation caused the several conventions to 
include this provision in their declarations of 
rights. 

Religion was defined as " the duty which we 
owe to our Creator; and the manner of discharg- 
ing it can be directed only by reason and convic- 
tion, not by force or violence " — a broad applica- 
tion of the doctrine of natural rights, whence it 
was concluded that all men were equally entitled 
to the free exercise of religion according to the 
dictates of their conscience. All the constitu- 
tions were made under the influence of the Chris- 
tian religion. In Massachusetts, Church and 
State were in a degree united and religious or- 
ganizations of a lawful character were entitled to 
support from taxation.* In New Hampshire, 
public " Protestant teachers of piety, religion, and 
morality " were to be supported by the several 
towns, parishes, bodies corporate, or religious so- 
cieties within the State, according to law ; but the 
union of Church and State was feeble. Maryland 
protected in their religious liberty all persons who 

* The Episcopal was made the State Church in South Carolina 
by its first constitution, 1776. 

53 



Constitutional History of the American People 

professed the Christian religion, and the Legisla- 
ture at its discretion could lay a general and equal 
tax for its support. Soon, however, the demand 
for religious toleration transformed the common- 
wealths into secular bodies. Religion was con- 
sidered a deterrent of crime — an idea that ac- 
counts for the brief union of Church and State in 
some commonwealths. In order to secure the 
equal rights of its inhabitants in the administration 
of justice, the Maryland amendment of 1795 em- 
powered members of the Society of Friends and 
others who were " conscientiously scrupulous of 
taking an oath," but were otherwise " qualified to 
vote or to be voted for," to substitute affirmation 
for the oath ; and three years later the constitu- 
tion was again amended so that the affirmation 
of persons was considered " of the same avail as 
an oath to all intents and purposes," thus permit- 
ting them to be witnesses in court. 

Vermont alone of the commonwealths applied 
the doctrine of natural rights to all men irrespec- 
tive of race or color, providing that no male per- 
son born in America, or brought from over sea, 
could lawfully be held to serve any person " as a 
servant, slave, or apprentice" after he arrived at 
the age of twenty-one years ; nor a female, in like 
manner, after she arrived at the age of eighteen; 
unless such persons were bound by their own con- 
sent after arriving at age or were bound by law 
for the payment of some obligation.* This clause 

* Vermont, 1777, 1786, 1793. 
54 



Virginia and the State Constitutions 

may well be called epoch-making, for it was the 
first antislavery provision in an American consti- 
tution, the precedent for a similar clause in the 
constitutions of Ohio* and Illinois,! and, in mod- 
ified form, in two constitutions of New York4 

In their bills of rights the commonwealths from 
the first illustrated the two sets of ideas which 
have divided the country. The Virginia bill was 
not common to the Northern States, the Massa- 
chusetts bill was not common to the Southern, and 
the difference was intensified as new constitutions 
were adopted. The New England provisions be- 
came the precedent for later constitutions of Nor- 
thern States and followed the movement of popu- 
lation westward to the Pacific. The Virginia bill 
became the precedent for States to the south and 
west, and, with modifications and additions, is now 
in force there. Only three States claimed to be 
sovereign, and these were in New England,§ but 
the doctrine of residuary State sovereignty pre- 
vailed. This unphilosophical notion was ad- 
vanced in the federal convention, was made a po- 
litical doctrine in The Federalist, and was adopted 
for a time by the Supreme Court of the United 
States. The idea was not disposed of till i868.|| 

A working principle of representative govern- 
ment was embodied in the claim of the State to a 

* 1802. 1 1819. \ 1821, 1846. 

§ Connecticut, 1776, Act of Assembly; Massachusetts, 1780; 
New Hampshire, 1784. The Connecticut provisions do not occur 
in the constitution of 1818. The Massachusetts remains; it was 
evidently taken from Art. ii., Articles of Confederation. 

|| In Texas vs. White. 

55 



Constitutional History of the American People 

portion of the labor, and, if need be, of the services 
of the individual — the first general formulation of 
the popular idea of a tax. The right of the citizen 
to the due course of law — a phrase traceable to 
the Great Charter — was commonly set forth with 
the addition of his right to a verification of the 
facts in the vicinage in which the act was com- 
mitted. Four States made it unconstitutional to 
try a man twice for the same offence.* Three 
construed the right of petition as empowering 
the people to instruct their representatives.! As 
incident to the right of the people to an untram- 
melled expression of opinion through their repre- 
sentatives, these were given privileges and im- 
munities not enjoyed by other citizens. When 
we reflect on the superfluous legislation of our own 
times, a provision for frequent sessions of the 
Legislature strikes us, at first, as evidence of inex- 
perience in government. It is evidence of the 
persistence of colonial habits. 

During the colonial period the annual session 
of the Assembly was the only check which the 
people had on the executive. The idea was per- 
petuated in the Constitution of the United States. 
One commonwealth now retains its annual Legis- 
lature, and it is the only one that has continued 
its eighteenth-century constitution. £ It is doubt- 

* New Hampshire, 1784; Pennsylvania, 1790; Delaware, 1792; 
Tennessee, 1796. 

t Vermont, 1777, 1786, 1793. North Carolina, 1776. Pennsyl- 
vania, 1776, 1790. 

\ Many features of the first constitutions of New Hampshire, 

56 



Guarding the Independence of the Judiciary 

ful whether a convention called at the present time 
to make a national Constitution would provide 
for annual sessions of Congress. 

The principle which in large measure has regu- 
lated the business transactions of the people was 
embodied in the provision forbidding the enact- 
ment of ex post facto laws, or laws impairing the 
obligation of contracts. Four States thus estab- 
lished a precedent for the national Constitution.* 
The States guarded carefully against the confusion 
of functions, and protected the citizen against the 
usurpation of the judicial by the executive or the 
legislative. Two complaints, long heard during 
colonial times, were ended by the provision against 
forcibly quartering troops on citizens in time of 
peace, and by that recognizing the civil author- 
ity as paramount in the state. No bill of rights 
was arranged in strictly philosophical order nor 
was free from irrelevant matter, as illustrated 
in the bills of rights of three States, which de- 
clare that an independent judiciary is essential to 
the stability of the commonwealth.! The silence 
of the others on this point merely signifies that 
they sought to secure an independent judiciary 



Vermont, Delaware, North Carolina, Kentucky, Tennessee, Penn- 
sylvania, and New York, remain in the present constitutions of 
these States. Massachusetts has amended hers thirty -three 
times. New York, New Jersey, and Delaware still have annual 
sessions. 

* Maryland, North Carolina, 1776; Massachusetts, 1780; New 
Hampshire, 1784. 

t Maryland, 1776; Massachusetts, 1780; New Hampshire 1784, 
1792. 

57 



Constitutional History of the American People 

through legislation. The comparatively slight 
intimation of the importance of an independent 
judiciary contained in the first State constitutions 
hardly prepares us for the elaborate application of 
the idea in the Constitution of the United States 
and its defence in The Federalist. 

The defects of colonial government were inti- 
mated in the provision forbidding judges to hold 
other offices during their terms of service, or to 
receive fees in addition to their salaries ; and for 
the first time judges were subject to removal by 
the Governor on recommendation of two-thirds of 
each House.* An administrative measure of this 
kind would scarcely be sought among the clauses 
of a bill of rights. It illustrates what is not rare 
in constitutions, how a provision transferred to 
the bill of rights from its normal place in the 
article on the legislative, executive, or judiciary, 
in order to emphasize its importance and to se- 
cure it from amendment, is placed in the most 
permanent part of the instrument. 

The influence of Blackstone may be detected in 
the language of two constitutions, which, in apply- 
ing the theory of compact, declared that men sur- 
render some of their natural rights when they 
enter society.! The clauses on freedom of wor- 
ship recognized the rights of conscience, and pub- 
lic opinion was sufficiently sensitive to the rights 
of those who had scruples against bearing arms — 



* Maryland, 1776. 

fNew Hampshire, 1784, 1792. 

58 



Indefinite Characteristics of Late Constitutions 

and these were chiefly of the Society of Friends — 
to allow them to substitute a money equivalent. 

A provision destined to be claimed later in 
support of State sovereignty was adopted by two 
Northern and two Southern States, reserving to 
them the exclusive regulation of their internal 
police.* The constitutions adopted since 1870 
have been criticised as partaking too much of the 
character of a code. Some of the first are open 
to the same criticism.! It is a wise convention 
that knows the difference between a constitution 
and a code. The last quarter of the eighteenth 
century was an era of transition and reforms, some 
of which are pushed forward in these early or- 
ganic laws. The common-law maxim, "The great- 
er the truth the greater the libel," was changed, 
and the jury with the evidence before it should 
determine both the facts and the law. Another 
reform changed the principle long made familiar 
by the saying, " Once an Englishman, always an 
Englishman." Henceforth the right of emigration, 
and, as a consequence, in later times the right of 
expatriation, should be accounted natural and in- 
herent. \ 

* Pennsylvania, Maryland, and North Carolina, 1776 ; Ver- 
mont, 1777, 1786, 1793. 

t Maryland, 1776; Vermont, 1777, 1786. Probably due to the 
fact that these constitutions were made by the Legislatures acting 
as conventions. 

% States having boundary disputes, Vermont, 1777, 1786, 1793 ; 
Pennsylvania, 1776, 1790; Kentucky, 1792, 1799. 



CHAPTER III 

THE FIRST ORGANIZATION OF GOVERNMENT 
IN THE STATES 

Though freedom in religion was a characteristic 
reform of the times, the freedom was relative : 
great if one looked backward, slight if he looked 
forward. There was still a predominant disposi- 
tion to disqualify the non- religious part of the 
community from voting and from office. By the 
non-religious was meant all who did not formally 
and publicly accept a prescribed creed or a theo- 
logical system. This disqualification was the first 
to disappear in the struggle for the extension of 
the franchise which began about 1795 with the 
Democratic party. But the religious disqualifica- 
tions were less rigorous than during colonial days. 
Suffrage extension was a reform destined to agi- 
tate the public mind down to our own time. 
Another was a step towards the abolition of im- 
prisonment for debt;* another, that the estates 
of suicides, traitors, and persons killed by acci- 
dent should not be forfeited to the common- 
wealth, but descend to the heirs in the usual 



* Pennsylvania, 1790; traceable to Penn's Frame of Govern- 
ment, April 25, 1682; to the Laws Agreed Upon in England, 
May 5, 1682 ; to Charter of Privileges, 1701. 

60 



Social Distinctions in the Early Colonies 

manner:* a clear abolition of the common -law 
provision. 

It was to be expected that the new democracy 
would provide against hereditary emoluments and 
distinctions and titles of nobility, and that a pre- 
cedent would be established making it unconsti- 
tutional for a citizen to accept a gift from a foreign 
power without the consent of the State. What a 
democracy would not accept it could not well 
grant itself, and the state was made incapable of 
bestowing titles. It is now quite forgotten that 
social distinctions were sharper then than now. 
Jefferson and his party made political capital out 
of the aristocratic ways of the Federalists, and the 
wave that later swept Jackson into the Presidency 
engulfed for two generations at least the preten- 
sions of the class described by John Adams as 
" the well born." Missouri and Arkansas were 
commonwealths before the levelling spirits were 
quieted. The crest of the anti-nobility wave was 
always along the frontier. Jefferson affected neg- 
ligence, and made political capital out of dishev- 
elled dress. Political campaigns are still con- 
ducted on home-spun tactics. The one great tri- 
umph of the Whig party was won when it aban- 
doned federal traditions, identified itself with the 
people, and had monster meetings and ox-roasts. 

Though the States guarded the obligations of 
contracts entered into by citizens, only twot de- 

* Pennsylvania, 1790; Delaware, 1792; Kentucky, 1792, 1799. 
t Delaware, 1792 ; Tennessee, 1796, limited the right to its own 
citizens. 

61 



Constitutional History of the American People 

clared themselves suable at law, and one of these 
limited to its own citizens the right to bring the 
suit. The first, Delaware, adopted the provision 
two years before the great case* was decided that 
led to the eleventh amendment; the second, Ten- 
nessee, two years after. Though all the constitu- 
tions provided executive terms, only one pre- 
scribed a geographical rotation in the executive 
office. The Governors of Maryland for three quar- 
ters of a century came alternately from the eastern 
and the western shore. This commonwealth was 
he first to proscribe monopolies, in language now 
familiar to the States of the new Northwest. The 
proscription of 1776 began the industrial cam- 
paign that is still going on. 

Colonial experience and the political philosophy 
of the day combined to declare the provisions in 
the bills of rights inviolable, or, as the phrase went, 
" beyond constitutional sanction." Each conven- 
tion sought to perpetuate its work. Yet the six- 
teen States that comprised the Union in 1800 had 
adopted twenty -six constitutions in twenty -four 
years. This activity was engendered by the in- 
completeness of those made amid the stress of 
war. It is somewhat paradoxical that constitu- 
tions, like governments, change most in times of 
peace. From these first declarations the com- 
monwealths have departed but little. This was 
inevitable. The doctrine of natural rights, of the 
social compact, and of popular sovereignty could 

* Chesholm vs. Georgia, 2 Dallas, 419. 
62 



Natural Rights of the Early Settlers 

not be abandoned. The chief source of the declara- 
tions was the experience of Englishmen in Eng- 
land and America. There is no close relation be- 
tween the colonial charters and these constitutions. 
What Americans read into them and out of them 
was now for the first time formulated in the foun- 
dation of the State. One phrase found in several 
of the later charters was elaborated into a new prin- 
ciple. Colonists who, by royal charter, were said 
to have all the liberties and immunities of free and 
natural subjects of Great Britain, could, without 
great intellectual effort, at least in the eighteenth 
century, when accusing the King of violating the 
social compact and leaving them " in a state of 
nature," claim that their rights were natural. This 
may be said to be the fundamental doctrine of de- j 
mocracy in America.* All the provisions in the 
American bills of rights, then and now, were once 
administrative measures. They are past politics 
gone to seed, the mature experience of men in 
social relations. If government were not a mat- 
ter of administration, there would be no bills of 
rights. These need not necessarily be written. 
They may be secured in the customs or tradi- 
tions of a people. From their nature they tend 
to lengthen. Perhaps the best illustration of the 
manner of their coming is afforded by the amend- 
ments to the national Constitution, which are the 

* It was stated for the first time in a constitution by New Jer- 
sey — Constitution 1776, Clause 1. As there given, it states the 
whole case of the American Revolution — the transition from mon- 
archy to democracy. 

63 



Constitutional History of the American People 

national bill of rights. The first ten were common 
to the first State constitutions ; the remaining five 
were added to make secure administrative measures 
accepted as final at the time of their adoption. 

In later years the Declaration of Independence 
and the bills of rights were often called " glitter- 
ing generalities."* As a people, we have become 
more or less familiar with the privileges and im- 
munities which they were intended to protect, and 
therefore the provisions themselves seem super- 
fluous. We cannot conceive of a republican form 
of government without them. The States were 
making the first attempt in history to define civil 
functions by means of a written constitution. The- 
oretically, the division was complete ; practically, 
incomplete, and the incompleteness was admitted. 
The cause of the difficulty is the impossibility of 
fixing the administrative relations of the three, so 
called, powers — the executive, legislative, and judi- 
ciary. Baffled by the problem for three centuries, 
democracy in recent years has attempted to solve 
it by organizing the administrative as a fourth 
power. This attempt at solution explains why 
the later constitutions resemble a code. 

The normal organization of the Legislature was 
in two branches, which prevailed, except in three 
States for a short time.t The division was not 
an inheritance from England, except as to form. 

* Rufus Choate gave the phrase currency. See an article on 
the Declaration, by Moses Coit Tyler, in the North American 
Review for July, 1896. 

f Pennsylvania, Vermont, Georgia. 

64 



English and American Legislative Systems 

Functionally the two Houses in America differ 
widely from the English, as was thoroughly un- 
derstood in the eighteenth century. The life-ten- 
ure, the membership by inheritance, the landed 
interests of the House of Lords have no place 
in the American Senate. The functions which 
the English system secures we secure by a con- 
ventional arrangement of elections, terms, tenure 
of office, and prescribed powers. In similar man- 
ner we established a Lower House with functions 
analogous to those of the Commons. Not much 
importance is to be attached to variation in legis- 
lative titles.* The terms Senate and House were 
sufficiently common to give title to the branches 
of the national Legislature, and since 1787 titles 
have been uniform. The Houses together were 
uniformly styled the General Assembly. Annual 
elections of the House prevailed and continued 
till their expense and the superfluous legislation 
they engendered compelled their abandonment. 
The change extends over the nineteenth century. 
Only one State — Massachusetts — continues the old 
practice. Representation in the House was vari- 
ously apportioned. The basis was property, civil 
corporations, taxable inhabitants, electors, popu- 
lation, or some combination of these elements. 
In all States the basis was the white race. The 
" federal number," as the provision for representa- 

* House of Representatives in Pennsylvania, Delaware (1792), 
Georgia, Kentucky, Tennessee, New England ; Assembly in New 
Jersey, New York, Delaware (1776); House of Commons, North 
Carolina (1776). 

1.— E 65 



Constitutional History of the American People 

tion of three - fifths of the slaves was called, was 
adopted in only one State,* though proposed in 
several in later years. 

In States having cities containing a large pro- 
portion of the population, a struggle early began 
between rural and urban interests! which has con- 
tinued to the present and has affected their suc- 
cessive constitutions. In every instance the rural 
interest has triumphed and the city has been de- 
nied the proportion of representation to which its 
population has entitled it. The custom early be- 
gan of fixing the minimum and maximum number 
of both House and Senate. Changes in popula- 
tion were usually provided for by a sliding scale 
of representation based ~ j census. As in later 
times, the practical definition of a district proved a 
difficult problem. Its solution could be at best 
only approximate and temporary. In some States 
towns were older than counties ;| in others coun- 
ties were older than towns.§ The representative 
district as we know it was not yet worked out. 
The unit of measure was various — the town, or 
the parish, or the county. Gradually the pre- 
dominating basis of local government became the 
basis of representation — the town or township in 
the North, the county in the South. Usually the 
apportionment was loosely fixed in the first con- 
stitution of a State. Later apportionments were 
left to the Legislature. There was sure to remain 

* Georgia, 1798. 

t Massachusetts, New York, Pennsylvania, Maryland, Virginia. 
I Massachusetts, Virginia. § The newer States. 

66 



Conservatism of Early Democracy 

a fractional population in the districts which, in 
the aggregate, constituted more than the ratio of 
representation. It was early attempted to recog- 
nize this remainder.* Neither then nor since has 
the attempt given satisfaction, though successive 
conventions have wrestled with the problem. The 
demand for equitable representation has been one 
of the chief causes of new constitutions. As no 
official census enabled the first conventions to ap- 
portion representation equitably, their work was 
speedily revised. This accounts for the number 
of constitutions before 1800. Population during 
the eighteenth century was relatively stationary. 
A native migration soon began, the effect of which 
quickly transformed great portions of the North- 
west and of the Southwest into States. Their ad- 
mission was contemporaneous with the arrival of 
the advance guard of European immigrants, who, 
to the number of nearly seventeen millions, have 
contributed to make the problem of apportion- 
ment one of the most difficult which the common- 
wealths have had to solve. 

Though the fundamental notion of eighteenth- 
century democracy was equal rights, the constitu- 
tions carefully discriminated who among the pop- 
ulation were qualified to vote and to hold office. 
The voters were a small fraction of the people ; 
and those qualified for office a small fraction of 
the voters. The Representative was required to be 
of a certain age, to have resided in the State or 

* Kentucky, 1799. 

67 



Constitutional History of the American People 

district a certain time, to possess a certain amount 
of property, principally in land ; to profess a cer- 
tain religious creed, and to be native - born, or a 
citizen at the time when the constitution was 
adopted. Only white men were eligible to office. 
As the qualifications were carefully detailed in the 
constitution, they must be interpreted as express- 
ing public opinion. In few instances were they 
left to the discretion of the Legislature. They 
show what were considered the guarantees of pub- 
lic safety. Men possessing them were accounted 
as having "a permanent, common interest with 
the community." The following Table, specifies 
the qualifications required from candidates in some 
of the States, according to their constitutions : 

The Qualifications of Representatives Prescribed by the 
State Constitutions, i 776-1800. 



State 


Const. 


Age 


Residence 


Property 


Religion 


Term, Limitations 


N.H. 


1776* 
1784 

1792 


(21) 
(21) 

(21) 












For two yrs. 
inhabitant 
of town, 
parish, r 
place chos- 
en to rep- 
resent. 


Estate of 
^100, one- 
half to be 
freehold in 
that town. 

<< << 


Protestant. 


Annual election. 



* In New Hampshire a Representative was a freeholder. See Acts and Laws, New 
Hampshire, Portsmouth, 1771, p. 3. In Rhode Island he was an elector (see Table of 
Qualifications). The oath of an Assemblyman in Connecticut was : " You, A. B., do swear 
by the name of the ever-living God that you will be true and faithful to the State of Con- 
necticut, as a free and independent State, and in all things do your duty as a good and 
faithful subject of the said State, in supporting the rights and privileges of the same." 
(Assembly, second Thursday of October, 1777.) The Representative was qualified as an 
elector. For the oath required in 1776, see Acts of 1776, p. 451. 

New York was districted, March 4, 1796, into four "great districts "—Southern, 
Middle, Eastern, and Western, following the grand division of that for Presidential Elec- 
tors, April 12, 1792 (repealed November 19, 1792). See Constitution, 1777. 

In New Jersey, Assemblymen, members of Legislative Council, sheriffs, and coroners 

68 



What the Candidates Should Possess 



The Qualifications of Representatives Prescribed by the 
State Constitutions, 1776-1800. — Continued. 



State 


Const. 


Age 


Residence 


Property 


Religion 


Term, Limitations 


Vt. 


1777 


21 


I yr. in State. 




Belief in one 


Annual election. 










God; in- 














spiration of 














the Scrip- 














tures ; pro- 














f e ss the 














Protestant 














religion. 




" 


1786 
1793 


li 


«< << 




<« << 


<( «< 


«< 


< < 


2 years in 
State, 1 yr. 




« <c 


(< <( 


















of which 














(the last) in 














the town he 














represents. 








Mass. 


1780 


(21) 


1 yr. in town 
he repre- 
sents. 


Freehold of 
/ioo in 
town he 
represents, 
or ratable 
estate of 
^200 in that 
town. 


Christian re- 
ligion. 


«< < 4 


N. Y. 


1777 
1776. 


(21) 
(21) 








a (( 


N.J. 


1 yr. inhabi- 


£500 real 


No Protes- 










tantof coun- 


and person- 


tant denied 










ty he repre- 


al estate in 


the right of 










sents. 


thatcounty. 


candidacy 
on account 
of religious 
opinions. 
Religionasin 




Pa. 


1776 


(21) 


2 yrs. in city 


Taxpayer. 


Annual election. 








or county 




Vermont. 


Not oftener 








he repre- 






than 4 years 








sents. 






in 7. 



were nominated by nomination tickets, made by the electors, sent to the town clerks. 
From this list, published by the clerks, the electors chose on the second Tuesday of Octo- 
ber. Act of February 22, 1797. 

Pennsylvania was districted (apportionment of Representatives) September 4, 1779. 

In Virginia, by one of the ordinances, passed July, 1775, the Senator was included among 
the officers of the State to be qualified as a freeholder. 

In South Carolina, by act of Assembly, April 7, 1759, a member was required to be a 
Protestant, to have resided one year in the province, to possess five hundred acres of 
land and twenty slaves, or ,£1000 clear in realty. 

In States whose constitutions did not specify the age of the Representative, custom or 
law fixed it at twenty-one years. In the table these are distinguished by placing the num- 
ber in parentheses, thus (21). 

69 



Constitutional History of the American People 



The Qualifications of Representatives Prescribed by the 
State Constitutions, i 776-1 800. — Continued. 



State 


Const. 


Age 


Pa. 


1790 


21 


Del. 


1776 


(21) 


" 


1792 


24 


Md. 


1776 


above 
21 


Va. 


1776 


(21) 


N.C. 


1776 


(21) 


S. C. 


1776 


(21) 


" 


1778 


(21) 




1790 


21 



Residence 



Citizen and 
inhabitant 
of the State 
3 yrs. ; the 
last year of 
it in city or 
county he 
represents. 



Residence in 
county rep- 
resented. 



Citizen and 
inhabitant 
of the State 
3 yrs.; the 
last year in 
county. 

1 year in 
county rep- 
resented. 

Reside in 

county. 
1 year in 

county. 



3 yrs. in State 



Property 



Taxpayer. 



Freehold. 



Freehold in 



county. 



^500 real 
and person- 
al property, 
above. 

Freeholders 
in same. 

100 acres for 
life or in fee 
(possessor 
thereof for 6 
mos. before 
election) 
the county 
represented 



£3500 (cur- 
rency) in 
real estate. 

500 acres, 
f r e ehold 
and 10 ne 
groes, or of 
^150 clear. 

70 



Religion 



Term, Limitations 



The qualifi- 
cation is in 
the nega- 
tive: no per- 
son who ac- 
knowledges 
the being of 
a God and a 
future state 
of rewards 
and punish 
ments to be 
disqualified 

Belief in the 
Trinity and 
in the inspi 
ration of the 
Scriptures. 



Christian re 
ligion. 



Protestant. 



Protestant. 



Annual election. 



; < <« 



Chosen bien- 
nially. 



Free white man. 



Legislative Procedure Borrowed from England 



The Qualifications of Representatives Prescribed by the 
State Constitutions, 17 76-1 800. — Concluded. 



State 


Const. 


Age 


Residence 


Property 


Religion 


Term,Limitations 


Ga. 


1777 


21 


12 mos. in 
State, 3 
months in 
county. 


250 acres of 
land or 
^250. 


Protestant. 


Annual election. 


1 ' 


1789 


21 


7 yrs. citizen 
of U. S. ; 2 


200 acres 




1 1 < < 






land or 












yrs. inhabi- 


$150. 












tant of the 














State, and 














an inhabi- 














tant of the 














county rep- 














resented. 








«« 


1798 


21 


The same 
as in 1789. 


250 acres, or 
taxable 




Chosen on the 






federal basis — 










property 




" three-fifths " 










worth .£500 




clause. 










in the coun- 
ty. 






Ky. 


1792 


24 


2 yrs. citizen 
of the State; 




Chosen ann'lly. 












last 6 mos. 














of county. 








" 


1799 


24 


Citizen of U. 






1* << 




S., 2 yrs. in 














State ; last 














year in the 














town or 














county rep- 














resented. 








Tenn. 


1796 


21 


Svrs.inState; 


200 acres, 




Biennial. 






I year in 


freehold. 








| county. 









Centuries of practice in legislation had worked 
out a procedure in the British Parliament, and the 
substance of it was embodied in these constitu- 
tions. The provisions regulated the quorum, the 
election of members, their official conduct, their 
privileges, and the power of the House or Senate 
over them. This portion of our supreme law well 
illustrates the origin of constitutional provisions. 

71 



Constitutional History of the American People 

From the State constitutions the federal conven- 
tion made up the analogous part of the national 
Constitution. They were construed as checks and 
balances in legislation. 

If the test of sovereignty, at this time, be the 
oath of allegiance, the States were sovereign, as 
Representatives and other State officials did not 
/£wear allegiance to the United States, but to their 
\own commonwealth. The requirement intimates 
how slight men considered their obligation to the 
national government. The national idea which 
now prevails was then unheard of. Speeches 
without number have been made, and books with- 
out number written, to prove that the national gov- 
ernment, paramount and sovereign, began on the 
4th of March, 1789. Since the civil war, almost 
unconsciously, national sovereignty, as now under- 
stood, has been freely imputed to the United 
States in the eighteenth century. Two things 
must be remembered. The Constitution was 
ratified with the understanding that a residuary 
sovereignty was left in the States ; the present 
idea of national sovereignty was evolved by more 
than a century of administration. In other 
words, we have learned by experience that it is 
impossible to administer a general government 
that is not sovereign. Necessity made the Con- 
stitution originally, and necessity has worked out 
the idea of national sovereignty. Too often ideas 
are imputed to " the fathers " which it was im- 
possible for them to hold. If the federal gov- 
ernment had been commonly recognized in the 

72 



State and National Sovereignty 

eighteenth century as sovereign, the oath of al- 
legiance would not have been limited to the State. 
With one exception, the State constitutions now 
in force accord with public opinion on national 
sovereignty. The excepting constitution — that 
of Massachusetts of 1780 — is in this particular a 
solitary survival of the eighteenth century, and it 
practically conforms by statute with the other 
forty -four. The growth of the idea of national 
sovereignty kept pace with the degree to which 
the general government identified itself with the 
interests of the people. At first the States did 
the more for them. As soon as the States began 
to fall behind, the idea of national sovereignty de- 
veloped. The State constitutions kept pace with 
the idea, and gradually prescribed allegiance to 
both governments. 

Education at public expense, which now consti- 
tutes an element so essential to the general wel 
fare, was quite unthought of in the eighteenth ceny 
tury.* The need of schools was felt, and was met 
in part. The silence on the subject, at the time, 
should not be construed as evidence of wilful 
neglect of learning. The States were poor and 
deeply in debt. Individualism ruled the hour, and 

* Massachusetts Constitution, 1780. Pennsylvania, 1790— the 
provision was put in to protect the then newly established Col- 
lege of Philadelphia ; Art. vii., Sec. 3, was inserted to protect 
the old college, whose charter had been attacked by the Legis- 
lature. See Stone's edition of Wood's History of the University; 
third edition, Philadelphia, 1896. Five States made the support 
of schools obligatory on the Legislature — Pennsylvania, Ver- 
mont, New Hampshire, Massachusetts ; Georgia, 1798. 

73 



Constitutional History of the American People 

it was not thought to be a function of the State to 
do for a citizen what he ought to do for himself. 
We defend public education as the fathers de- 
fended property and religious qualifications — as a 
deterrent of crime. A slight change in the phrase, 
" Education, the cheap defence of the nation," puts 
us in touch with eighteenth-century thought. 

John Adams was the father of the public school, 
the State university, the State college, and the 
normal school. He realized when he inserted the 
educational clauses in the constitution of Massa- 
chusetts that he was departing from precedent and 
feared lest all would be struck out. # Save in New 
England, the idea lay dormant until the national 
government began to make donations of public 
lands exclusively for school purposes. The State 
constitutions then introduced an administrative 
article on education. This act of the general gov- 
ernment strengthened the national idea. In our 
day, the right to education, in popular estimation, 
ranks as a civil right. 

Temporary features are found in all constitu- 
tions ; those in the first refer chiefly to pending 
questions of boundary — settled later by surveys, 
although nearly every commonwealth is still vexed 
by some boundary dispute. Traces of abuses in 
legislation that still survive are found, such as 
filibustering and the granting of gratuities. Legis- 
latures acted under a free, general grant of powers. 
The exceptions scarcely suggest the later almost 

* Life and Works of John Adams, Vol. i., p. 24. 

74 



Powers of State Legislatures 

tropical growth of provisions against special legis- 
lation. The first limitation of this kind was a 
rather feeble attempt to regulate divorces.* In- 
compatible offices were defined; clergymen were 
disqualified from civil office, not so much to sepa- 
rate Church and State as to improve the profes- 
sion.! The compensation of members was a per 
diem allowance, regulated in some States by the 
constitution, in others by the Legislature. A 
member was disqualified by receiving fees or by 
loss of property. The House possessed the ex- 
clusive right to originate money bills. Tennessee \ 
inaugurated the change which after 1800 was grad- 
ually to overspread the country, that the bill may 
originate in either House. 

Departure from English precedent was inevita- 
ble, as the Senate, being an elective body like the 
House, was responsible to the same constituency: 
a condition that never prevailed in England. It 
was a case of cessat ratio, cessat lex. The change 
begun in 1796 intimated that others might be ex- 
pected, bringing the Legislature into the condition 
— practically set by the later constitutions — of one 
body differing only by tradition from the other. 
The House was the chief heritage from colonial 
times. It was the assembly to which for a cen- 
tury and a half the people had turned for protec- 
tion and relief. It preserved many colonial tradi- 

* Georgia, 1798. 

t New York, 1777; North Carolina, 1776; South Carolina, 
Georgia, Kentucky, 1799; Tennessee, 1796. 
% Tennessee, 1796. 

75 



Constitutional History of the American People 

tions and practices, of which the distinguishing 
one was its exclusive powers of taxation. The 
Senate was a product of the times, springing into 
existence when colonies became commonwealths. 
Its origin is suggested by the name it bore in 
several States — the Legislative Council.* This 
original must not be confused with the Executive 
Council which for a time also existed in most of 
the States and survives in three.t The Senate 
T sprang from an idea, embodied in the New Eng- 
land charters, that, in addition to the colonial 
Assembly, Assistants to the Governor should be 
chosen. As the theory of checks and balances 
took possession of the public, the Senate as we 
now know it was devised as a set-off to the 
House. It was the most artificial part of the new 
civil system, and its functions have never been 
as distinct, in the popular mind, as those of the 
House. It is not strange that the proposition to 
dispense with it has been made from time to time. 
As its functions become identical with those of 
the House, its existence becomes precarious. It 
seems to weaken as the administrative strength- 
ens, but the House has weakened also at the same 
time. It would seem, previous to experience, that 
the Senate would be strengthened by being em- 

* Delaware (1776), called Council of the General Assembly; New 
Jersey, South Carolina (1776), Legislative Council; New Hamp- 
shire, The Council ; Connecticut, Rhode Island, The Governor 
and Assistants. Until 1790 there was no Upper House in Penn- 
sylvania, nor in Vermont till 1836. 

t Maine, New Hampshire, Massachusetts. Efforts have been 
made to abolish it, especially in Massachusetts (1 880-1 895). 

76 



The Senate a New Device 

powered to originate money bills. On the con- 
trary, the idea has strengthened that the dualism 
is superfluous, and that the junior body should be 
permanently dissolved. The fate of the State 
Senate is a problem for the future. 

The original, advisory functions of the Senate 
are now performed largely by commissions, ad- 
ministrative boards, and individuals, who, in the- 
ory, are experts. All this body of administrative 
agents was wanting in the first constitutions, ex- 
cepting a few military, fiscal, and land officers. 
The Executive Council was an illustration of the 
popular distrust of Governors. The Crown was 
not yet forgotten. 



The Qualifications of Senators as Prescribed by the State 
Constitutions, 1776-1800. 



State 



N. H 



Vt. 



Const. 


Age 


Residence 


Property 


Religion 


Term 


1776 

1784 

1792 
1777 

1786* 
1793 


30 
«< 


Inhabitant. 

7 years in- 

hab. State 

and of dist. 

at time 

elected. 
it tt 






i yr. 

1 yr. 
it 


Freehold 
wo r t h 
£200. 


Protestant 























Remarks 

This upper 
branch 
(temporary), 
was chosen 
by the low- 
e r, and 
called the 
Council. 



Verm on t 
had a 
Co uncil, 
but no 
Senate. 



* Vermont had no Senate until 1836. 

77 



Constitutional History of the American People 



The Qualifications of Senators as Prescribed by the State 
Constitutions, 1776-1800. — Continued. 



State 


Const. 


Age 


Residence 


Property 


Religion 


Term 


Remarks 


Mass. 


1780 




5 yrs. inhab. 
of State, 
inhab. of 
dist. repre- 
sented. 


^300 in 
freehold, 
or ^600 in 
personal 
estate. 




i yr. 




N. Y. 


1777 






Freeholder. 




4 yrs. 
1 yr. 




N.J. 


1776 




1 yr. county 


^1000 


Same as 


The Upper 










proclama- 


Assem- 




House was 










tion mon- 


blymen. 




called the 










ey, if real 






Legislative 










and per- 






Council. 










sonal es- 
















tate. 








Pa. 


1776 












No Upper 
House. 
















179O 


25 


Citizen of 
State 4 
years ; the 
last of the 
dist. repre- 
sented. 


Taxpayer. 


Same as 
for Rep- 
resenta- 
tives. 


4 yrs. 




Del. 


1776 


25 


Reside in 
county. 


Freeholder. 




3 yrs. 


Called the 
Council. 


<< 


1792 


27 


Citizen of 
State 3 
years ; the 
last of the 
county. 


200 acres 
freehold, 
or real and 
personal 
property 
worth 

;£lOOO. 




3 yrs. 




Md. 


1776 


25 


3 yrs. resi- 


;£iooo real 


As mem- 


5 yrs. 


Chosen by 








dence in 


and per- 


bers of 




electors. 








State. 


sonal. 


House. 






Va. 


1776 


25 


Resident in 
district. 


Freeholder. 


< < 


1 yr. 




N. C. 


1776 




1 year in 

county. 


300 acres 
in fee. 


tt 


1 yr. 




S. C. 


1776 












Chosen by 
the Assem- 




























b 1 y from 
















its own 
















body, and 
















called the 
















Legislative 
















Council. 




1778 


30 


5 years in 
State. 


;£2ooo set- 
tled free- 
hold estate 


Protestant 


1 yr. 





73 



Senatorial Qualifications 



The Qualifications of Senators as Prescribed by the State 
Constitutions, 1776-1800. — Concluded. 



State 


Const. 


Age 


Residence 


Property 


Religion 


Term 


Remarks 


s.c. 


1790 


30 


5 years in 
State. 


^■300 ster- 
ling, set- 
tled free- 
hold. If 
a non-res- 
ident in 
the dis- 
trict, an 
e state, 
freehold, 

of ;£lOOO, 

cl e a r of 
debt. 




4yrs. 




Ga. 


1777 












No Upper 
House. 
















1789 


28 


9 years in- 
habitant 
of U.S., 3 
years of 
State, 6 
months, 
county. 


250 acres 
freehold 
or proper- 
ty worth 
£250. 




3yrs. 






1798 


25 


Same as in 
1789, ex- 
cept 1 year 
in county. 


Freehold 
worth 
$500 or 
taxable 
property 
worth 
$1000. 




1 yr. 




Ky. 


1792 


27 


2 years m 
State. 






4yrs. 


Chosen by 
electors 




















specially 
















elected. 


" 


1799 


35 


U.S. citizen, 






4yrs. 






6 years in 














State, last 
















in district. 










Tenn. 


1796* 


21 


3 years in 
State, of 
which 1 yr. 
in county. 


200 acres 
in free- 
hold. 




2 yrs. 





The compensation of members of the two Houses was usually the same ; 
but the Speaker of the House received more than any other member of it, 



* In Tennessee the qualifications for Senators and Representatives were the same until 
1834. 

79 



Constitutional History of the American People 

and the President of the Senate received the same as the Speaker of 
the House. Thus, in 1797, the Speaker and the Vice-President of the Coun- 
cil, in New Jersey, received 20 shillings a day ; the councillors and mem- 
bers, 17 shillings; in Pennsylvania, 1777, the members received 15 shil- 
lings, the Speaker, 20 shillings. In 1791, in Pennsylvania, the two pre- 
siding officers, 22 shillings and 6 pence ; the Senators and Representatives, 
15 shillings and 9 pence, mileage. In Virginia, in 1779, each Assembly- 
man was paid 50 lbs. of tobacco daily, and 2 lbs. additional as mileage ; by 
the act of 1780, the grand jury was required, at each of the four sessions 
of the general court, to estimate the money value of tobacco as a basis 
for the wages of members of Assembly. 

Senatorial apportionment differed from that for 
the House. It was by groups or masses of popu- 
lation rather than by single towns or counties.* 
{The basis was property ; that of the House, though 
varying, was persons, or persons and property. 
The district came into existence in the attempt to 
establish a basis for Senatorial apportionment. To 
secure all the benefits of the Senatorial device, the 
retiring clause was worked out by which democ- 
racy secured a changing body and a permanent 
one at the same time. The State thus established 
the precedent for the nation. The Senate was a 
smaller body than the House, chosen for a longer 
term, and the qualifications for its members were 
a little more exacting. The Senator was an older, 
and in some States a richer, man.t A body as 
conventional in origin would be expected to illus- 
trate temporary expedients or schemes of election. 
Of these, most noticeable was the Electoral College, 
the prototype, if not the precedent, for the Presi- 

* Virginia, New Jersey, 1776; Massachusetts, 1780; Georgia, 
1789; Pennsylvania, 1790; New Hampshire, 1793. 

t New Jersey, Maryland, Delaware, North Carolina, 1776; New 
York, 1777; Massachusetts, 1780. 

80 



Plutocratic Characteristics of the Senate 

dential Electors. The States speedily abandoned 
the College — Maryland, in which it originated, and 
Kentucky, which took it from Maryland and the 
Constitution of the United States. The idea 
early took root that each county should have one 
Senator. But the theory of equal representation 
compelled a recognition of the more populous 
counties and increased the difficulties of appor- 
tionment. Various devices were tried to keep the 
membership of the Senate in ratio with popula- 
tion, but none gave full satisfaction. The func- 
tions of the Senate were in part copied from those 
of the House of Lords, as that of a court of im- 
peachment or a court of law, but in part conven- 
tional, as that of electing the Governor.* In some 
States the House participated in this election.! 
The first led to confusion of legislative and judi- 
cial functions ; the second was soon recognized 
as undemocratic. Gradually, before the century 
closed, the Senate came to be recognized as rep- 
resenting the property, the House the persons, ' 
in the State. But the idea was at best conven- 
tional. For this reason democracy set about de- 
stroying the first basis and strengthening the 
second, and the functions of the Senate were viewed 
in a new light. It gradually became a democratic 
body. The old distinction was for half a century 
a political issue. But the democratic character of 

* Georgia, 1789. As a court, New Jersey, New York, Con- 
necticut, Rhode Island. 

t In the Southern States usually by joint ballot. In Georgia, 
1777, the House alone elected him. 
1. — p 81 



Constitutional History of the American People 

the Senate was not established until after 1820. 
Together, House and Senate comprised a working 
Legislature whose methods of procedure remain 
essentially as when they were first established. 
The constitution held the two branches together. 
As a device, the Senate was almost a discovery 
in politics. It illustrates how democracy utilized 
political mechanics in working out a substitute 
for an ancient branch of the Legislature which 
hitherto had consisted of a landholding class — law- 
makers by accident of birth. There was nothing 
accidental in the substitute. Every quality and 
function was fixed by the logic of the political 
situation. It is in this sense only that the State 
Senate is one of the natural flowers of democracy. 



Qualifications 


of Governors. State Constitutions, 


I 776-1800.* 


State 


Const. 


Age 


Residence 


Property 


Religion 


Term 


Remarks 


N H. 


1776 
1784 

1792 

1777 
1786 
1793 

1780 
1777 














« 1 
Vt 


30 
30 


7 years in 
State. 


^"500, one- 
half in 
freehold. 


Protes- 
tant. 


I yr. 

« < 


Styled the 
President. 












«« 




4 years in 

State. 
7 years in 

State. 






Mass. 
N.Y. 


;£iooo free- 
hold. 
Freeholder 


Christian. 





* The Governor of Rhode Island was a freeholder, and elected annually ; so of Connecti- 
cut. In New York, act of March 27, 1778, the elector voted viva voce for Senators and 
Assemblymen, but by ballot for Governor and Lieutenant-Governor. In New Jersey the 
Governor's salary, by act of December 23, 1784, was .£550; November 7, 1797, .£750; 
November 7, 1798, ^700; November n, 1799, $1866.67. In Virginia, his salary, act of 
May, 1779, was ^4500. In Kentucky, act of January 22, 1798, ^400, also fuel, station- 
ery, and postage. In Tennessee, October 23, 1796, $750. In all the States, no man other 
than a freeholder was chosen Governor ; nor any man who had not long been a resident 
of the State. In States whose constitutions did not specify the age qualification, it may 
be put at thirty years. A person not professing the Christian religion was not likely to be 
mentioned as candidate for Governor ; exceptions will occur— as that of Jefferson in Virginia. 

82 



Gubernatorial Qualifications 



Qualifications of Governors. State Constitutions, 1776-1800. 



Const 



1776 

1776 
1790 

1776 



1792 
1776 

1776 
1776 

1776 

1778 

1790 

1777 
1789 



1798 

1792 
1799 

1796 



Age 



30 



30 



25 



30 



Residence 



7 years in 
State. 



I2yrs. U.S.. 

last 6 years 

State. 
5 years in 

State. 



5 years in 
State. 



10 years in 

State. 
10 years in 

State. 

3 years in 

State. 
12 yrs. citi- 

zenof U.S. 

6 years of 

State. 



2 years cit- 
izen of the 
State. 

Citizen of 
U.S.,6yrs. 
resident of 
State. 

4 years cit- 
izen of the 
State. 



Property 



^500O, of 
which 
£ 1000 is 
freehold. 



£ 1000 free- 
hold. 



^10,000 
freehold. 

^1500 set- 
tled es- 
tate, clear. 



500 acres 
land, free- 
hold, or 
£ 1 000 
other 
property. 

500 acres, 
freehold, 
or $4000 
in other 
property. 



500 acres, 
freehold. 



Religion 



Protes- 
tant. 



Christian 



Protes- 
tant. 



Protes- 
tant. 



Term 



I yr 



3 yrs. 



3 yrs. 



yr. 



2 yrs. 



1 yr. 

2 yrs. 



2 yrs. 



4 yrs. 



4 yrs. 



2 yrs. 



Remarks 



President. 



Ineligible 
for 3 years. 
Styled the 
President. 



Ineligible 
for 4 years. 



Ineligible 3 
years in 6. 

Temporary 
gov't. 

I neligible 
till 4 years. 



Eligible I yr. 
out of 3. 



Ineligible 
for 7 yrs. 



83 



Constitutional History of the American People 

Distrust of executive power and fear of execu- 
tive usurpation characterize democracy at this 
time. Executive, like legislative, titles varied 
among the States. The oldest working charter 
called the executive the President,* a title destined 
to highest dignity in the country. The Governor 
had been the most important man in the colony, 
and by tradition was the most important in the 
State. Democracy is forced to fall back on cere- 
mony to take the place of the halo that hedges 
kings, and the early Governors were dignitaries 
such as Presidents became in later years. But 
the dignity of office is at last measured by the real 
power that accompanies it, in spite of the aristo- 
cratic airs and fine dress of a Governor or the title 
by which the constitution requires us to address 
him. The unwritten law of official life has at last 
given all Governors the title prescribed in the con- 
stitution of Massachusetts. After much discus- 
sion, the federal convention decided to give no 
title to the national executive other than the name 
of the office ; whence it has come that the execu- 
tive of a commonwealth is addressed as " his Ex- 
cellency " — and the executive of the nation simply 
as " the President." Where democracy was strong- 
est and most experienced — as in New England — a 
Governor might be re-elected at the will of the 
people ; elsewhere constitutional limitations more 
or less affected the choice.! Executive qualifica- 

* Charters, 1606, 1609. 

t Pennsylvania, 1790, "nine years in twelve"; Delaware, 1792, 
"three years in six"; South Carolina, 1778, 1790, "two years in 

84 



Governors in the Early Days of Commonwealths 

tions were more discriminating in degree than 
those laid down for Senators — he must be longer a 
resident of the State and be possessed of a greater 
amount of property. The office in some States 
was accessible only to the few having strong 
family influence. United States citizenship was 
not a common requisite, as now, for legislators, 
governors, judges, and minor officials. The GovA 
ernor was chosen by the Legislature, except in 
New England and New York, where he was/ 
chosen by the electors. Not until Jacksonian 
democracy revised the State governments was the 
Governor chosen by popular vote throughout the^ 
Union. During the intervening years the manner 
of choice was a transition from the old method 
by royal appointment to the new one by popular 
election. In case of failure to elect by popular 
vote, the choice was made by the Legislature, as 
at present. 

The Governor was a military rather than a civil 
officer. His military duties were quite carefully 
outlined ; his civil functions were obscure. He 
shone in the splendor which now clothes his staff. 
His civil functions now almost wholly obscure his 
military. The difference was carried to practical 
ends. The pardoning and the veto power were 
not freely given to him. In popular fancy he was 
the man on horseback. To-day he is the man 

six." Annual elections in New England, New Jersey, South Car- 
olina, 1776. Biennial in New Hampshire, 1784, 1792; South Car- 
olina, 1778, 1790; Georgia, 1789, 1798; Tennessee, 1796. Quad- 
rennial in Kentucky, 1792. 

85 



(J 



Constitutional History of the American People 

with the quill. It was a military period, and the 
soldier rather than the civilian was hero. It is a 
paradox of modern times that when standing 
armies have become an institution the civilian, 
not the soldier, the Iron Chancellor, not Von 
Moltke, is the hero. In America it was the age 
of captains, as eighty years later was the age of 
colonels. The state was conceived as a military 
rather than an industrial machine. The concept 
was antithetic to that of the rights of man. As 
yet there were few offices and no civil service. 
The gentle art of creating offices was not yet dis- 
covered. Few were the Governor's appointments, 
and chiefly in the militia. He could not, unaided 
by his council, nominate judges or the few civil 
officers which the State required — such as the 
'attorney-general or the sheriff. His compensa- 
tion was variously described as honorable, reason- 
able, and adequate. Perhaps the amount was 
omitted from the constitutions and left to be fixed 
by the Legislature because of the fluctuation in 
the paper money of the times. A salary of nine 
thousand pounds * seems princely till we learn 
that it was in fiat money. 

His function in legislation was also obscure. 
Popularly, he was supposed to execute, not to 
make, laws — or, as in our day, to unmake them. He 
was expected to send an annual message to the 
Legislature in which he pointed out the needs of 
the State.t For a time Legislatures seem to have 

* South Carolina, 1776. 

t Pennsylvania, the first State to follow the national Constitu- 

S6 



I 



When the Governor Was Supreme 

taken these messages literally. In our day they 
are consigned to a committee and forgotten. The 
messages of the early Governors remain a fair 
index of early legislation. As long as this state 
of things continued, it was unnecessary to limit 
the power of the Assembly and increase that of 
the Governor. He was conceived to be the head 
of the State. That his office was considered one 
of great dignity is illustrated by the early history 
of the national government. Men preferred the 
office of Governor to that of Congressman or/ > 
United States Senator, cabinet minister or federal 
judge. John Jay resigned the office of Chief 
Justice of the United States to become Gover- 
nor of New York. It was a sign of the times. 
The State offered more than the United States 
to him who sought a political career. To be- 
come Governor was to reach the summit of polit- 
ical grandeur. 

Every system of government must be planned 
to provide against an interregnum. The State is 
by nature perpetual ; offices must not stand vacant ; 
civil functions must be performed. A Lieutenant- 
Governor — or, as he was styled by some, a Vice- 
President — was provided for. The succession 
was indirect in some States.* The Governor 

tion in re the message. It originated in New England. (See 
Massachusetts Constitution, 1780.) 

* In New England and New York, the Lieutenant-Governor ; 
but in New Hampshire, 1784, to the senior Senator, and in 1792 to 
the President of the Senate; so Georgia, 1789, 1798, following 
New Hampshire ; to Speaker of the Senate in Pennsylvania, 
Delaware, North Carolina, Kentucky, Tennessee. 

87 



Constitutional History of the American People 

was impeachable. # Confused functions seem to 
invite impeachment, as in some States he acted as 
judge, legislator, and executive. The clearer def- 
inition of the powers exercised by the President 
were imitated in constitutions adopted after 1789. 

Of the executive council — thought at this time 
essential to the protection of the people — little sur- 
vives. Its original function in provincial times 
was to control the administration. It was never a 
cabinet. In the first constitutions it represented 
popular distrust of the Governor of the State, as 
in earlier times it represented royal distrust 
of the Governor of the colony. The growth of 
administrative offices later meant the decay of 
this council. For a time it stood for the civil 
side of executive power, as the Governor stood 
for the military. Chosen usually by the Legis- 
lature, it began to change in political character 
when the members were elected in districts. Be- 
fore it had disappeared, it exercised executive, 
legislative, and judicial functions. Clearly the 
Governor was a military figure intrusted with few 
powers. It is rather curious that though he has 
increased in authority, he is less conspicuous in 
public affairs than he was a hundred years ago. 

The State courts, like the colonial, followed the 
English type ; but a distinct State government 
required appropriate courts. The county courts 
were continued, a new court was created, and the 
two sets were distinguished as the inferior and the 

* New York, Virginia, by Assembly; North Carolina, "or by 
presentment of grand jury." 

88 



Jurisprudence under the Constitutions 

superior, or supreme. The nisi prius system was 
about to be changed. Superior courts exercised 
both a law and an equity jurisdiction. There were 
courts of chancery. Judges were appointed by the 
Governor or chosen by the Legislature,* usually 
for the term of good behavior. The unreasonable- 
ness of the age limit t on judges was proved by 
the appearance of Kent's Commentaries, after their 
author had been retired on account of constitu- 
tional disqualifications to continue a judge in New 
York. Judges were removable. As to-day, the 
jurisdiction of the superior courts was final in all 
cases; thus appellate jurisdiction was regulated 
in each commonwealth by law. Not infrequently 
the judge was ex officio a justice of the peace. 
The superior courts were too numerous and their 
jurisdiction too various to be easily classified. 
They were largely the creatures of the Legislature. 
Their titles help to indicate their character: pro- 
bate, admiralty, orphans', chancery, common pleas, 
oyer and terminer. Their jurisdiction was orig- 
inal, but not final, and was both civil and criminal. 
Judicial functions were slightly confused with 
executive. Many rules which had grown up in 
practice found their way into the constitutions. 
Georgia began the innovation of defining juris- 
diction by specifying the money value involved in 
a case 4 a precedent since freely followed. The 

* New Jersey, Virginia, South Carolina, 1776; Tennessee, 1796; 
chosen by joint ballot : elsewhere by Governor. 

t New York, sixty years ; New Hampshire, 1792, seventy years. 
X Georgia, 1777. 

8 9 



Constitutional History of the American People 

courts met much as at present, the number of 
sessions being regulated by law. Clerks were ap- 
pointed by the judges. All writs ran in the name 
of the commonwealth, as previously in the name 
of the King. As at present, litigation went on 
chiefly in justices' courts, and these were the ob- 
ject of constitutional care. The justice was ap- 
pointed by the Governor or elected by the Assem- 
bly. Democracy had not yet secured control of 
any part of the judicial system. The justice was 
a local dignitary who wrote Esquire after his name, 
and was commonly called the 'Squire. Usually 
he continued in the office for life and prospered on 
his fees. Never were a people more given to liti- 
gation than the Americans in the last century. 
The Revolution bred innumerable lawsuits and 
an army of lawyers ranging in ability from John 
Marshall to Andrew Jackson. 

Best known in each county was the sheriff, 
whose office was the first in importance after the 
Representative, to be filled by popular election. 
No other* official was closer to the people, and 
none was of greater antiquity. His duties, it was 
thought, as now, could not be safely intrusted to 
any man save for a short time, and not for succes- 
sive terms. This limitation was due to the com- 
posite character of the office. He was collector, 
assessor, executor, treasurer, comptroller, police, 
keeper of the poor, and sheriff — all in one. It 
was his function as custodian of public and private 
money that forbade re-eligibility till the lapse of 
years and his successor had, as is now said, "gone 

90 



Complications of Early Legal Practice 

over the books." The office was in a state of 
transition at this time. As under English law, 
the sheriff was appointed in some States by the 
executive ; in others he was chosen by the electors. 
He was the second officer of the court. The jury 
system was as yet unshaken, and no hint given of 
its impending dissolution. The right of trial by 
jury ranked high among the fresh rights of man. 
Therefore the jury of twelve men and the grand 
jury of nearly twice the number were conceived to 
be pillars of the State. A unique provision which 
has not become a precedent made the Supreme 
Court in one State, Massachusetts, an advisory 
council to the Governor and Legislature. Common 
law practice was yet distinct from equity practice, 
and the technical difficulties of real actions, plead- 
ings, and chancery procedure made the practice 
of the law a mystery.* England soon after this 
began the simplification of practice, and America 
has followed ; but the abolition of distinctions in 
actions which characterize practice to-day was un- 
thought of at this time. Not until after the fed- 
eral judiciary act of 1789 did the State systems 
bend towards uniformity. They were less respon- 
sive than the executive or the legislative to consti- 
tutional revision; yet, judicial reform of some 
kind has usually been proposed by a convention, 
and in one instance only the judicial article in a 
proposed constitution escaped defeat at the polls.t 

* Maryland, 1776, contains many provisions, essentially only 
rules of court. 

t New York, 1868. 

9i 



Constitutional History of the American People 

These early courts were the precedent for the fed- 
eral judicial system, and their virtues survive there 
in the circuit court and the life-tenure of the judges 
— the one bringing the courts to the people, the 
other securing an independent judiciary. 

Slavery was not an aggressive element; one 
State forbade importation;* two others,! cruel, 
treatment of slaves, and the latter provision be- 
came a precedent in the Sduth. A Representa- 
tive in Congress from South Carolina must have 
been qualified by the ownership of ten negroes, 
and the requirement was in force three-quarters 
of a century — till abolished by the thirteenth 
amendment. Delegates to the Congress of the 
Confederation were chosen by the Legislatures, 
and subject to recall. Like Governors and mem- 
bers of the General Assembly, they were required 
to be freeholders. No State constitution before 
1789 suggested the idea of nationality. Later 
ones of the period, like their successors, were si- 
lent respecting United States Senators. Their 
election has always been regulated by law. Per- 
sons of foreign birth were as yet few in number, 
but immigration from the West Indies and the 
British provinces made necessary some provision 
for naturalization. 

The electors were free white men. A few elec- 
tors, North and South, were free persons of color. 
Their inclusion in the electorate in New Jersey 
and North Carolina was doubtless an oversight. 

* Delaware, 1792. 
t Georgia, 1798; Kentucky, 1799. 
92 



The Whites Debarred from the Franchise 

That colored men voted in New Hampshire, Mas- 
sachusetts, and New Jersey is unquestionable.* In 
a few years public opinion, except in New Hamp- 
shire and Massachusetts, kept them from the polls. 
The majority of white men were disqualified from 
voting. The qualifications for electors were less 
exacting than those for office-holders. A shorter 
residence and less property were required. 

* In New Jersey the right was taken away from them, from 
aliens, and from females — inhabitants — by the Constitution of 
1776, by act of Assembly, November 16, 1807. See debate on 
" abrogating the right of free persons of color to vote ;" Pro- 
ceedings and Debates of the Convention of North Carolina 
Called to Amend the Constitution of the State, which assembled 
at Raleigh, June 4, 1835, to which are subjoined the Convention 
Act, the Amendments to the Constitution, together with the Votes 
of the People. Raleigh, 1836, pp. 351, et seq. See also Curtis's 
dissenting opinion, Scott vs. Sandford, 19 Howard, 393. There 
is no evidence that free persons of color voted in colonial times. 



Qualifications of Electors Prescribed by the Constitutions 

1 7 76-1 800. 



State 


Const. 


Age 


Residence 


Property 


Taxation 


Religion* 


Sex 


Race 


Native 
or Nat- 
uralized 


N.H. 


1784 

1792 
1777 

1786 
1793 


21 

21 
21 

21 
21 


Town. 

Town. 
1 year in 
State. 

<< 


Having 
town 
privi- 
leges, 

free- 
hold. 
Freehold 


Poll-tax. 




Male 

Male 
Male 

Male 
Male 






Vt. 






Foreign- 
er after 
1 year's 

resi- 
dence. 










" 












* In New Hampshire, Massachusetts, Connecticut, and Vermont in the eighteenth 
century, most of the electors were church members. 

93 



Constitutional History of the American People 



Qualifications of Electors Prescribed by the Constitutions 
1 776-1800. — Continued. 



State 


Const. 


Age 


Residence 


Property 


Taxation 


Religion 


Sex 


Race 


Native 
or Nat- 
uralized 


Mass. 


1780 


21 


1 year in 
town. 


Freehold 

of an- 
nual in- 






Male 














v N. Y. 


1777 


21 


6 mos. in 
county. 


come of 
£3, or 
es tat e 
of £60. 
Freehold 
of ^20 
or pay - 
ing rent 
of 4 s. 
Free- 
hold of 
^"iooto 
vote for 
State 


Taxpay- 
e r , r 
free- 
man of 
Albany 
or New 
York 
City. 




Male 










NJ. 
Pa 


1776 

1776 

1790 

1776* 
1792 

1776 


21 

21 
21 


1 2 mos. in 
county. 

1 year in 
State. 


Sena- 
tor. 

Estate of 
£50. 






Male 
or fe- 
male 
Male 

Male 


White 

or 
black 




Taxpay - 

er. 
State or 

Co. tax. 












Del 








21 
21 


2 years in 

State. 
1 year in 

county. 




State or 
Co. tax. 




Male 
Male 


White 




Md 


Freehold 
of 50 
acres or 












Va 


1776* 
1776 






prop- 
erty 
of £30. 












4 NC - 


21 


1 2 mos. in 
county. 


Freehold 
in coun- 
ty of 50 
acres for 
6 mos. 
before 
election 
mayvote 
forState 
Senator. 


Paidpub- 
lic tax- 
es, may 
vote for 
m e m - 
ber of 
H. C. 



















* Qualifications "as fixed by law," see Table, p. 96. 

94 



Constitutional Needs of Electors 



Qualifications of Electors Prescribed by the Constitutions 
1776-1800. — Concluded. 



1 
















Native 


State 


Const. 


Age 


Residence 


Property 


Taxation 


Religion 


Sex 


Race 


or Nat- 
uralized 


s.c. 


1776* 

1778 


















21 


I year in 


Freehold 




Acknowl- 


Male 


White 










State. 


of 50 
acres or 
townlot 
or paid 
taxes 
equal 
to tax 
n 5 
acres. 




edges 
the be- 
ing of a 
Godand 
a future 
state of 
rewards 
and 
punish- 
ments. 








< < 


1790 


21 


2 years 
citizen 
of the 
State. 


Same as 
in 1778. 


If not 

free- 

has paid 
tax of 
2,s. ster- 
ling. 




Male 


White 




Ga. 


1.777 


21 


6 months 
in State. 


Proper- 
tyof^io 




























or being 




















of a me- 




















chanic 




















trade or 




















a tax- 




















payer. 












' * 


i7«9 


21 


d mos. in 


















county, 




















citizens 




















and in- 




















habitants 




















of the 




















State. 














" 


1798 


21 


<« 




Taxpay- 
er. 


























Ky. 


1792 


21 


2 yrs. in 
State or 








Male 


























1 yr. in 




















county. 














Tenn. 


1799 
1796 


21 
2T 


6 mos. in 








Male 
Male 


White 




Freehold 












county. 















* Qualifications "as fixed by law," see Table, p. 96. 

95 



Constitutional History of the American People 



The Qualifications of Electors as Prescribed by Law. 



State 



Mass. 
* R. I. 

Conn. 

N. Y. 

N.J. 

Pa. 



Md. 
Va. 



S.C 



Date of Law 



March 23, 1786 
1762 

1715 
March 27, 1778 

Feb. 22, 1797 
Feb. 15, 1799 



Oct., 1785 
Dec. 31, 1796 
Law of 1762-69 



Law of 1781 
Oct. 7, 1759 



Age 



21 



21 



Requirements 



Freeholders who pay one single tax, be- 
sides the poll, a sum equal to two- 
thirds of a single poll-tax. 

Inhabitants. £<\o in realty, or 40J. per 
annum rent, or eldest son of free- 
holder . 

Realty — 40$-. per annum, or ^40 in person- 
al estate. 

Every mortgagor or mortgagee in posses- 
sion, and every person possessed of a 
freehold in right of his wife, vote viva 
voce for Senators and Assemblymen ; 
by ballot for Governor and Lieutenant- 
Governor. 

Free inhabitants having ^50 property, and 
12 mos. in the county. Women, aliens, 
and free negroes, thus qualified, voted. 

Citizen of State 2 years, paying State or 
county tax 6 mos. before the election ; 
sons of electors vote " on age "; *". e., at 
21, without payment of the tax. 

Free negroes not to be electors. 

Free negroes and women not to be elec- 
tors ; an elector a freeman having 500 
acres of land unsettled, or 25 acres 
settled, having thereon a house 12 x 12. 
Elector voted in the county in which 
the greater part of his land lay, if it lay 
in two counties. 

Poll-tax — )^l)u. wheat, or 5 pecks oats, or 
2 lbs. sound bacon. Repealed Novem- 
ber, 1 78 1, and made ior. 

Elector — free white man possessing settled 
freehold estate, or 100 acres unsettled, 
or £bo in houses, or paying a tax of \os. 



Neither by the Constitution nor the law were free negroes (males) de- 
nied the right to vote in New Hampshire, Vermont, Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, Pennsylvania, or Tennessee. 
There is evidence that they voted in New Jersey from 1776 to 1807 (see 
act of November 16, 1807, limiting the right to vote to free white male 
citizens); in New York (acts of March 27, 1778 ; April n, 1815 ; April 19, 
1822); in Pennsylvania under Constitution of 1776 (see debate on inserting 
the word " white," as descriptive of the elector, in the report of the Con- 
stitutional Convention of 1838); in North Carolina (see debate on " abrogat- 

96 



Property the Qualification for the Franchise 

ing the right of free persons of color to vote," under Constitution of 1776, 
in debates of the Constitutional Convention of 1835); in Tennessee, from 
1776 to 1834 (see Caldwell's Constitutional History of Tennessee, p. 93, and 
compare the qualifications of the elector under the two constitutions). In 
New England, if the town-meeting admitted the free negro to a citizen's 
rights.he could vote. Public opinion in Rhode Island refused him admittance 
(see Constitutional Convention, 1818, Art. vi., Sec. 2; and of Rhode Island, 
1842, Art. ii., Sees. I, 2). It was not an established right in law, in 1842, 
that a person having African blood in his veins could be a citizen of the 
United States ; he could not become such by naturalization, as the law re- 
stricted naturalization to white men. Free persons of color were denied 
the right to vote in New Jersey, by act of Assembly, in 1807 ; in Tennes- 
see, by the Constitution of 1834 ! i n North Carolina, by constitutional 
amendment, in 1835 ; in Pennsylvania, by the Constitution of 1838. Thus, 
of the States that originally allowed them the right, New Hampshire, Ver- 
mont, Massachusetts, and New York never withdrew it. 

One trial was made of compulsory voting, and 
abandoned. It is impossible to know accurately 
the number of electors. It may be estimated at 
not more than one hundred and fifty thousand in 
a papulation of five millions. Had the suffrage 
of to-day prevailed, there would have been during 
these twenty-five years, at any election, not fewer 
than seven hundred thousand nor more than one 
million voters. 

The landless man, it was thought, could not be 
trusted. Universal suffrage, as we know it, was 
not thought of. The voters and office-holders 
comprised a landed aristocracy. Property was the 
basis of government, and continued to be, in the 
older States, for more than fifty years. But the 
struggle for the extension of the franchise began 
before the century was over, and won its first vic- 
tories when new States were admitted early in the 
nineteenth century. 

The men who made these early instruments 
1— g . 97 



Constitutional History of the American People 

realized that they might prove only temporary, 
and provided for their amendment and revision. 
To the Legislatures was left the initiative. Penn- 
sylvania and Vermont created a Council of Censors 
to guard the constitution and suggest changes.* 
To prevent hasty ones, some States made it pos- 
sible to make periodical revision. The electors 
were not consulted in making many of these con- 
stitutions ; but amendments and revisions were 
usually made with their consent. In some. States 
changes were difficult to make, the elements nec- 
essary to effect them not being likely to work 
harmoniously at one time. Gradually the proc- 
ess of amendment became simpler, and to the 
electors the Legislature submitted changes and 
the question of calling a convention. Gradually, 
also, the practice prevailed of submitting the work 
of the convention to the electors that it might re- 
ceive their ratification. This has become the 
normal procedure. 

What, then, were the distinguishing features of 
this body of eighteenth -century supreme law? 
Not least in importance was its civil character : it 
departed from feudal precedents and organized 
government on a peace footing. Unlike the early, 
and some later, constitutions of the South Ameri- 
can republics, and the written constitutions of the 
continent, it contained no provisions that can be 
called military in character. Political and civil 

* Report of Pennsylvania Censors in Proceedings of Conven- 
tions of 1776, 1789, Harrisburg, Part iii. The Reports of the 
Vermont Censors are in some twenty volumes, down to 1870. 



Individualism Dominating Politics 

rights were stated as their own best defence. 
American democracy thus made a unique contri- 
bution to the social evolution of the race. These 
constitutions, and the national — adopted amid 
and largely from the earlier of them — proclaimed 
that a new political opportunity had come. It was 
equality of the eighteenth-century kind, but purer 
and more accessible than before. In spite of the 
confusion of functions, the constitutions worked. 
Henceforth the people should rule by divine right. 
It is safe to smile at the idea now — as the heresy 
was promulgated long ago. But amid our smiles 
and disappointments we still cling hopefully to 
the heresy, believing that it is not too good 
to be true. Universal suffrage looks back, with 
some impatience and more pity, wondering that 
the fathers applied the theory of equal rights so 
badly. Theirs was the age of things — ours of 
persons. The basis of government has changed. 
The privileges of caste have been thrust back by 
the forces of universal suffrage. 

Many seeds of rivalry were sown in these con- 
stitutions. England was the land of privileges of 
birth and property, and the Americans were Eng- 
lishmen of yesterday. It was an age of theories 
in government ; ours is one of theories in econ- 
omy. Debating clubs discussed propositions then 
that we hold as political axioms now. Running 
through the whole political estate was individual- 
ism, the dominating notion of the times. Reading 
between the lines — or, to speak more truly, read- 
ing later experience into them — we detect ideas 

99 



Constitutional History of the American People 

which were the political straws left on the field 
after the harvest of independence. Whatever we 
may think of the new governments, they fixed 
the ancient landmarks, which have never been 
removed. 



CHAPTER IV 
THE TRANSITION OF INDEPENDENT STATES 

The colonization of America, as carried on by 
Englishmen, proceeded according to feudal notions. 
To individuals and companies the Crown granted 
charters as to feudal chiefs. Raleigh dreamed of 
a profitable tenantry and a long rent-roll in Amer- 
ica. All the companies were close corporations, 
animated by much the same spirit as Raleigh. A 
continent in a state of nature produces democracy. 
The economic schemes of feudalism failed ; but 
the system took political possession of the coun- 
try, and held on until democracy dislodged it with- 
in the memory of the living. The tenacious grasp 
was clear in the first State constitutions, and is 
traceable in those of our own times.* All govern- 
ment emanated from the Crown. The idea is still 
good in politics, and was long paramount in law. 
Charter privileges, in the early days, were exclu- 
sively for the members of the corporation, but 
immigration speedily compelled a change. The 
corporation was enlarged. This was the first re- 
form in representation, the first extension of the 



* The principal authorities for this chapter are the proceedings 
of the Legislatures and conventions referred to. See note, p. 29. 

101 



Constitutional History of the American People 

suffrage. The record of it fills the early annals 
of Massachusetts. It was typical of that going on 
in one form or another in all the colonies, and con- 
tinued long after they became States. It is a 
present issue. 

The unit of political measure was the town in 
the North; in the South, the county. Some old 
towns claimed an equal right of representation 
with counties. For a time it was granted them.* 
Colonial isolation compelled representation in local 
.government, and ultimately in federal. Much of 
the emphasis which has been put upon the right 
of representation is rather due to the economic 
character of the constituencies. Social efficiency 
was feeble. Self-protection compelled resort to 
some system of representation. The Virginia 
General Court of 1619, with which our Legislat- 
ures begin, exercised the functions of a judicial 
body and some functions of a legislative. It is 
not clear that James the First intended to estab- 
lish an American Parliament. The House of 
Stuart was not in the habit of laying such demo- 
cratic foundations. Nor is it probable that the 
King called the House of Burgesses into being 
merely to vex the posterity of his enemies. The 
Virginia Assembly was a necessity, and the charter 
was interpreted accordingly. It was an early in- 
stance of the administrative making the consti- 
tutional. The men who managed what were called 

* As in Virginia. The towns or boroughs preponderated in 1619, 
whence their delegates gave the name House of Burgesses to the 
Assembly. — Stith's Virginia, p. 160. 

102 



Greed Prompted Representative Institutions 

in the seventeenth century the " adventures to 
America " had their goal in gain. Therefore they 
courted immigration. History, we are told often, 
and incorrectly, repeats itself. History simply re- 
cords that the principles of human action remain 
the same. When, two hundred and fifty years 
after Captain John Smith and the Pilgrim Fathers, 
foreign immigration poured into the Far West, 
under the stimulus of the great railroad companies, 
the tactics of the directors of the London Com- 
pany of 1611 were repeated. To induce popula- 
tion, the corporations and proprietaries of colonies 
offered rare privileges to all who would come, and 
the Crown, yielding to influence, permitted politi- 
cal privileges, of which the most important was the 
right to choose a colonial Assembly. Thus repre- 
sentative government in America owes much, if 
not all, to the love of gain. Until the excuse be- 
came a travesty — and the farce ran on for more 
than a hundred years — colonization was carried 
on for the purpose of propagating the Christian 
religion among the Indians and bringing them 
" to human civility and to a settled and quiet gov- 
ernment." W T hen the last piece of colonization 
was attempted the purpose was no longer veiled ; 
the people of Georgia were to destroy the savages 
and increase the trade, navigation, and wealth of 
the realm.* 

American colonization was primarily a commer- 
cial venture, and the price paid for it was repre- 

* Charter, 1732. 
103 



Constitutional History of the American People 

sentative government. The few who, in some col- 
onies, sought " freedom to worship God " soon 
caught the infection of the age, and as time passed 
developed a masterful leadership in trade and 
commerce. Written in the light of results, the 
history of the colonies is economic, and the ecclesi- 
astical is not the controlling element. It was 
found that they could not prosper unless po- 
litical privileges demanded by the people were 
granted. The three Virginia charters illustrate 
this. 

Political organization took a form tending to 
the democratic. In Massachusetts the corporation 
w r as a distinct class. Only after great compulsion 
did it consent to receive new members, and these 
of its own choosing. It set qualifications which 
still kept the mass of the population out of the 
political organization. Necessity dictated reform. 
If it were denied, the reformers would emigrate 
and establish a new colony. The struggle began 
in 1633, and was the beginning of that for the 
extension of the suffrage and for equitable repre- 
sentation. Roger Williams grounded his demands 
on economic equities, long familiar to later gener- 
ations in the saying that taxation and representa- 
tion go together. Rhode Island was as much the 
fruit of this doctrine in the seventeenth century 
as American independence in the eighteenth. In 
granting the reform, Massachusetts prescribed con- 
ditions which may be called the first American 
electoral qualifications. They regulated the politi- 
cal life of the province. The conditions, some- 

104 



Conflicting Notions Concerning Representation 

what modified, continued until 1820, and, further 
modified, to the present time. 

In attempting to measure the forces which have 
shaped democracy in this country, that of individ- 
ualism must be assigned perhaps the first rank. 1 
It has dominated our laws and constitutions. It 
was bred by the economies of colonial life. Pro- 
vincial Assemblies legislated in its interest. That 
each must protect his own was the dominating 
spirit of colonial life. Eventually the idea got in 
the saddle, became the controlling principle of a 
political party, and overran the laws and consti- 
tutions of the country. 

By 1640 the idea of representation was well! 
established in Massachusetts, and the rights of 
individuals and of towns were the two halves of 
the political idea. The town idea was communal. 
This early division has continued to our own 
times, and in its history worked out two groups 
of political thinkers : one basing government on 
persons ; the other basing it on corporations. The 
idea has had many applications. That of greatest 
moment has emphasized the national as distin- 
guished from the commonwealth idea : the nation 
being founded on individuals, as intimated in the 
phrase " we the people of the United States "; the 
commonwealth being a political corporation. 
Under the charter of 1629 there grew up in 
Massachusetts three political groups — first, the 
executive, comprising, by the terms of the charter, 
the governor, the deputy-governor, and the assist- 
ants ; secondly, these persons and the deputies 

i°5 



1 



Constitutional History of the American People 

from the towns, together constituting the general 
court, or Legislature ; and, thirdly, the freemen, 
who participated at regular times in the town elec- 
tions. Of these groups, the first and second repre- 
sented the qualified electors, or freemen. At first 
the governor, deputy-governor, and assistants were 
chosen at the town elections, but when the charter 
was vacated the executive became a Crown officer. 
There was no effort in Massachusetts to copy after 
the British Parliament. The assistants were not 
analogous to the Lords, neither were the deputies 
chosen out of analogy to the members of the 
House of Commons. Nowhere in the colonies did 
the analogy prevail. Not as yet was there an equit- 
able apportionment of representation. No clear 
idea of proportional representation was evolved in 
England or America during the seventeenth cen- 
tury. After the adoption of the national Consti- 
tution it became necessary to work out the idea, 
and it remains a permanent though a partly 
solved problem. 

Not until the seventeenth century was almost 
over did the Crown fully recognize the right of the 
colonies to choose representatives to their local 
Assemblies. It was specifically acknowledged in 
the Connecticut charter of 1662, in the Rhode 
Island charter of the following year, and in the 
Massachusetts charter of 1692. It was recognized 
because the Revolution of 1648 in England had 
demonstrated that there were constitutional limits 
to executive authority, and the Crown realized that 
a monarchical form of government could not be 

106 



Formation of Two Legislative Chambers 

administered in England without a formal recog- 
nition of them. Experience in the administration 
of government both in England and America led 
to the formal recognition, by the British Crown 
and Parliament, of the ancient and undoubted 
rights of Englishmen to choose their own repre- 
sentatives. In England these were the members 
of the House of Commons ; in America, of the 
General Assemblies. 

In the earlier part of the seventeenth century 
the Governor and his council or assistants and the 
deputies of the towns met in the same room. The 
first meeting of the House of Burgesses of Virginia 
was with the Governor. The beginning of the 
bicameral system in this country was in Massa- 
chusetts, where as early as 1635 there arose a dif- 
ference of opinion between the assistants and the 
deputies of the towns, respecting the request of 
some inhabitants of Newtown who wished to 
migrate into Connecticut. This led to the separa- 
tion of the assistants and the deputies, which was 
essentially the formation of the two Houses of the 
Legislature. In 1644 the two groups, assistants 
and deputies, agreed in enacting a law that thence- 
forth they should sit apart as co-ordinate bodies. 
Evidently the bicameral system thus begun was 
quite as much of native origin as a copy of the 
home government. Thirty -four years later the 
two parts of the Connecticut Assembly were recog- 
nized by law, and before the century closed custom 
there compelled the Governor and council to sub- 
mit their several propositions to the entire legis- 

107 



Constitutional History of the American People 

lative body for approval. In October, 1698, the 
council in Connecticut was for the first time styled 
the Upper House and the deputies the Lower. 

Thus almost coincident with the time when the 
New York Assembly set forth the principles of the 
bills of rights, the bicameral system was estab- 
lished in America. In the New England colonies 
the democratic element was stronger than in any 
to the south ; for the first charter of Massachusetts 
and those of Connecticut and Rhode Island for- 
mally recognized the right of freemen to partici- 
pate in the government. In the proprietary and 
royal colonies no such right was recognized by 
charter, although it came to be recognized by 
custom. To this Pennsylvania was an exception. 
Penn planned from the first a government demo- 
cratic in form, promising his people that they 
should have law- makers of their own choosing 
and laws of their own making ; but the system 
of the referendum which he attempted to intro- 
duce, by which the Governor and council were to 
submit laws to the representatives of the people, 
proved cumbrous and unsatisfactory. The recog- 
nition which Penn gave to the rights of the peo- 
ple forever settled the question of free govern- 
ment in his province. 

Three years before Penn inaugurated his " holy 
experiment," a royal commission provided that 
the Governor of New Hampshire should himself 
prepare the laws, with the approval of his council 
and the deputies of the people; but in 1680 a law 
of New Hampshire provided that no executive 

108 



Preponderance of Democratical Ideas 

ordinance should go into effect unless it had been 
made by the deputies of the people and approved 
by the president and council. Thus the order of 
the initiative in legislation was reversed and dis- 
tinct functions recognized in the two branches of 
the Legislature — one comprising the deputies, the 
other the Governor and council. This reversal in 
New Hampshire was made necessary by the con- 
ditions of colonial life. The Governor could have 
no peace if he attempted to govern in any other 
way. This was the experience of all the royal 
governors. Pennsylvania and Georgia through- 
out their colonial history had but one legislative 
House. The executive council, though not nomi- 
nally exercising the functions of a separate House, 
was one in fact ; the council was more numerous 
than in other colonies and showed no marked 
antagonism to the more popular branch. 

From the democracy of the colonial era evolved 
the later civil functions of the commonwealths.* 
Of these the legislative was of greatest impor- 
tance and destined to continue, with slight modi- 
fications, to the present time. Though the Legis- 
lature in eleven colonies consisted of two Houses, 
it was the Lower House — the deputies — which 
developed as the central authority in the colony. 
This House was the voice of the politically quali- 

* The principal authorities for the account, in this chapter, of 
the transition from colonies to commonwealths are the journals 
and proceedings of the first State constitutional conventions, and 
Provincial Congresses. See note, p. 29. The bibliography is 
nearly complete in the State Library Bulletin, additions No, 2. 
Albany (November), 1894, pp. 266-277. 

109 



Constitutional History of the American People 

fied freeman. It was the only part of the colonial 
government directly responsible to the people. 
The Upper House in Rhode Island and Connecti- 
cut was similarly constituted, but in the other 
colonies, excepting Pennsylvania and Georgia, 
the council was appointed by the executive and 
assisted him in executive, judicial, and administra- 
tive duties. The colonial Governor, except in 
Connecticut and Rhode Island, was appointed 
either by the Crown or the proprietary, and was a 
foreign element in the colonial organization. The 
meeting of chief importance to the freemen was 
the annual or semi-annual election at which dep- 
uties were chosen. With slight exception, the 
right to vote was limited to persons possessing a 
prescribed amount of real estate who also were 
members of a religious sect. They also were 
required to reside for a prescribed time in the 
town in which they voted, although this was of 
less importance than now, as there was relatively 
little change of residence in colonial times. The 
principal difference between the qualifications of 
the elector and the elected was in the amount of 
property required. 

In May, 1 775, while yet the Continental Congress 
was in session, the Provincial Congress of Massa- 
chusetts asked for advice respecting the reorgani- 
zation of the government of the province. Al- 
ready the Revolution had almost transformed 
the colonies into commonwealths. The complete 
transition was comparatively easy. At the pres- 
ent time, a region is set off by Congress as a Terri- 



The Transition into States 

tory, in expectation that it will in due time apply 
for admission to the Union as a State on an 
equal footing with the older States. The pro- 
ceeding throughout is regulated by the Constitu- 
tion and the laws. No analogous regulation ex- 
isted when the petition of Massachusetts was 
made to the Congress of 1775. That body had 
no authority to prescribe any procedure, and no 
precedent for one existed. Yet the request of 
Massachusetts was soon followed by similar ones 
from New Hampshire, Virginia, and South Caro- 
lina, and the course of events compelled reply. 
To Massachusetts, Congress replied in June, rec- 
ommending its provincial convention to request 
the several towns entitled to send deputies to the 
General Court to choose them in the usual manner 
and to instruct them, when convened in Assem- 
bly, to choose the colonial councillors as provided 
for in the charter of 1692. This advice was fol- 
lowed, and the government thus established in 
Massachusetts continued until supplanted by that 
of 1780. To the requests of the other colonies 
Congress replied, on the 3d and 4th of No- 
vember, 1775, but only by way of advice, urging 
them to summon a free representation of the 
States in order to establish " such a form of gov- 
ernment as in their judgment will best promote 
the happiness of the people and most effectually 
secure peace and good order in their colony dur- 
ing the continuance of the dispute with Great 
Britain." Congress was unwilling even to give 
this somewhat evasive advice. Public sentiment 



Constitutional History of the American Teople 

had so profoundly changed that the transition 
from colonies to commonwealths could be more 
easily made than many in Congress realized. 
These were Revolutionary times; public sentiment 
was changing from day to day, and the true status 
of public affairs was difficult of definition. Yet 
the colonies were not without means of guidance. 
The civil organization with which each was best 
familiar was a sufficient basis for a new one. The 
Lower House of the General Assembly was the 
nucleus for a reorganization of the government. It 
is clear enough now that the normal procedure 
would have been for the Assembly in each colony 
to provide for the election of delegates to a con- 
stitutional convention which should formulate a 
plan of government, and submit it to the qualified 
electors. If approved by them it should become 
the supreme law of the State. This procedure, 
however, was almost out of the question in most 
of the colonies. John Adams had declared in 
Congress that the work of organizing the com- 
monwealths on the basis of colonies " could be 
done only by conventions of representatives chos- 
en by the people in the several colonies in the 
most exact proportions." But Adams was ahead 
of his time. It was not until the ioth of May, 
1776, that Congress adopted the decisive resolu- 
tion, recommending " to the several Assemblies 
and conventions of the United Colonies " where 
no government sufficient to the exigencies of their 
affairs was established, to adopt one " best con- 
ducive to the happiness and safety of their con- 

112 



Abnormal Civil Procedure 

stituents in particular and America in general." 
This involved the independence of the United 
States, and was opposed by all who still trusted in 
a reconciliation. It would appear from the lan- 
guage of the resolution that the work of reorgan- 
ization was to emanate from the colonial Assem- 
blies, or their successors, known in some colonies 
as the Provincial Congress or colonial convention. 
Times were pressing, and it seemed advisable to 
reorganize the colonial governments as soon as 
possible. This may extenuate the fault, if there be 
any, in the advice which Congress gave. Doubt- 
less it seemed unadvisable that the organization of 
representative government should be delayed in 
any colony by the mere preliminary procedure nec- 
essary to the calling of a normal constitutional 
convention. The precedent which this Congres- 
sional resolution suffered to be set up may be said 
to have dominated the States during the eighteenth 
century, for during the years from 1775 to 1800 it 
was the exception when a State followed what 
later times recognize as the normal course to ob- 
tain a constitution. 

Within two weeks NewHampshire followed the 
advice of Congress. Its Assembly, which called it- 
self a provincial convention, decided that a new 
convention should be summoned. For this pur- 
pose a census of the inhabitants was taken and the 
delegates chosen were apportioned to the number 
of electors in the colony, and empowered to exer- 
cise the functions of government for one year. 
They met on the 21st of December at Exeter, 

I.— H 113 



Constitutional History of the American Teople 

and made the first constitution for that State.* 
They called their body a Congress and assumed 
other functions than that of making a State consti- 
tution. The convention took unto itself the title 
and authority of a House of Representatives, and, 
following the advice of Congress, elected twelve 
persons to be Councillors and to comprise the oth- 
er House. The form of government was intended 
to be only provisional. Had peace between Great 
Britain and the colonies been restored, the govern- 
ment thus inaugurated would have been dissolved 
and the colonial organization restored. The con- 
vention, therefore, was not a normal constitutional 
convention, but a composite body, of revolutionary 
character, chosen under peculiar circumstances 
and exercising functions which in times of regular 
civil administration are never exercised by the same 
authority ; for this convention exercised executive, 
legislative, and judicial functions. The Upper 
House, or Council, being a creation of the Lower, 
the traditional division of the Legislature into two 
branches can hardly be said to have been followed.! 

* Most of the towns of the State were represented by the sev- 
enty-six delegates to the Exeter Congress. Matthew Thornton 
was one of the signers of the Declaration of Independence ; three 
members were delegates to the Continental Congress — these 
three and one other to the National Congress. Two committees 
were appointed to bring in a constitution ; that of five consisted of 
Matthew Thornton, Meshech Weare, Ebenezer Thompson, Wyse- 
man Cloggett, Benjamin Giles. The original draft is said to be in 
John Hurd's hand. General John Sullivan, though not a mem- 
ber, had made important suggestions. Weare became Governor 
in 1776; Sullivan, in 1790. See Provincial Papers, vii.; State 
Papers, viii. 

f New Hampshire Provincial Papers, Vol. vii., pp. 644 et seq. 

114 



Some Conventions and Their Results 

It was not long before the autocratic character of 
the new government caused popular dissatisfaction, 
and on the ioth of June, 1778, there assembled 
at Concord another convention, which continued 
in session nearly a year, during which time a new 
constitution was drawn up and submitted to the 
several towns for approval. This constitution was 
rejected, and on the second Tuesday of June, 1781, 
a third convention assembled at Exeter, continuing 
in session two years and a half. A new constitu- 
tion was made during its nine sessions. Mas- 
sachusetts, meanwhile, had adopted a constitution, 
which was closely followed by New Hampshire. 
At last, approved by the people in their town-meet- \\ 
ings, the new constitution was duly inaugurated 
with much ceremony on the 2d of June, 1784. 
It has been observed by legal writers that the New 
Hampshire conventions of 1778 and 1781 were 
strictly constitutional conventions, because they 
were summoned in due form by the authority of 
the existing government of the State ; their dele- 
gates were duly chosen for a specific purpose, and, 
met in convention, they formulated a plan of gov- 
ernment which, having been submitted to the 
electors in their several town - meetings, was duly 
ratified. 

On the 1st of November, 1775, the Provincial 
Congress of South Carolina proceeded to frame 
the first constitution of that State, adjourning on 
the 26th of March of the following year. This 
Congress originated as a committee of the colony, 
a body distinct from the colonial Legislature. 

115 



Constitutional History of the American People 

Like the first constitution of New Hampshire, 
this of South Carolina was to exist until a rec- 
onciliation between Great Britain and the colonies 
should be made. The precedent for South Caro- 
lina was obviously the analogous parts of the Brit- 
ish government. The procedure in South Carolina 
was abnormal. The convention was revolutionary 
in character and originated not in any direct act of 
authority of the government of the colony, but in 
the advice of Congress.* The constitution thus 
framed was not ratified by the electors and did not 
give general satisfaction, though acquiesced in dur- 
ing the stress of Revolutionary changes. On the 
5th of January, 1 Jj8, the General Assembly, though 
not specifically chosen to make a constitution for 
the State, promulgated one. Between the meeting 
of the first and the second conventions of South 
Carolina, the Declaration of Independence had been 
issued, and, chiefly in consequence of this act and 
all it implied, the people of the State acquiesced 
more willingly in this second constitution. But it 
was of no greater validity than an act of Assembly, 
and was so held by the Supreme Court of the State. 
Obviously those who made it did not comprise a 
constitutional convention, for they lacked the 

* The classic treatise on Constitutional Conventions, their His- 
tory, Powers, a?id Modes of Proceeding, by John Alexander 
Jameson, LL.D., late Judge of the Superior Court of Chicago, Il- 
linois ; Chicago, Callaghan & Co. (fourth edition), 1887, remains 
the first and best authority on the subject. I have used its con- 
clusions without hesitation. Before his death Judge Jameson 
conveyed his library to me, which, with my own collection of 
Conventions, Debates, and Proceedings, has enabled me to con- 
sult most of the material on the subject in existence. 

116 



High Individuality of the Virginia Convention 

authority delegated to such a body. However, 
this second constitution, made in the council 
chamber, continued in force until 1790, when a 
convention assembled at Columbia on the 3d 
of June and promulgated a constitution, which, 
several times amended, continued in force until 
1865. 

The next State to act was Virginia, which, in 
April, 1776, elected forty -five delegates to a pro- 
vincial convention. # They met at Williamsburg 



* The Proceedings of the Convention of Delegates held at the 
Capitol, in the City of Williamsburg, in the Colony of Virginia, 
on Monday, the 6th May, 1776. (Reprint) Richmond, 1816; 
86 pp. ; Ordinances, 19 pp. See also The Virginia Convention of 
1776, Grigsby, Richmond, 1855. No other convention assembled 
to make a State constitution has enrolled so many eminent men. 
Of the one hundred and twenty -three members, Jefferson was 
soon to write the Declaration of Independence, and, with him, 
Richard Henry Lee, Benjamin Harrison, Thomas Nelson, and 
Chancellor Wythe were to be signers. Lee, Harvie, and Ban- 
ister were to sign the Articles of Confederation ; Patrick Henry, 
Edmund Randolph, John Blair, George Mason, Chancellor Wythe, 
Richard Henry Lee, Thomas Nelson, and Madison were to be 
chosen delegates to the Federal Convention ; Henry, Nelson, and 
Lee refused to attend ; Randolph and Mason refused to sign the 
constitution ; Wythe was absent on the day when it was signed; 
Blair and Madison signed it. Nineteen of the members served 
as delegates to the old Congress, and twenty-one became mem- 
bers of the national Congress. Richard Henry Lee and Henry 
Tazewell became Senators of the United States ; Henry, Jeffer- 
son, Nelson, Harrison, Randolph (Edmund), and James Wood be- 
came Governors of the State ; Jefferson and Madison became 
Presidents twice ; both served as Secretary of State, and Ran- 
dolph as Attorney - General ; Blair was appointed by Washing- 
ton an Associate Justice of the Supreme Court. Nine were subse- 
quently chosen Presidential Electors — Henry, Harvie, and Wood, 
in 1789; Blair, Wythe, and Page, 1801 ; Read, Wythe, and Page, 
1805 ; Page and Harrison, 1809 ; Richard Henry Lee, Harrison, and 

ii7 



Constitutional History of the American People 

on the 6th of the following May, and on the 29th of 
June promulgated the first constitution of the com- 
monwealth. This convention, like that of South 
Carolina of 1778, was a Revolutionary gather- 
ing, chosen to supplant the ancient House of 
Burgesses, and to establish a government that 
would organize all the forces of the State in oppo- 
sition to Great Britain. It was not specifically 
empowered to make a constitution. The frame of 
government it adopted was destined, however, to 
continue in force until 1830. This constitution 
is famed for its bill of rights, drawn up by George 
Mason. 

When Congress gave the general advice to the 
colonies to organize State governments, New 
Jersey was already under the control of political 
committees and a Provincial Congress. On the 
fourth Monday of May, 1776, representatives were 
chosen throughout the State, to the number of sixty- 
five, equally distributed among its thirteen coun- 
ties. They assembled at Burlington on the 10th of 
June.* They acted as a General Assembly rather 



Page, in 1813. The majority of the members were conspicuous 
in the government of Virginia as legislators, judges, and county 
officials. 

* See its Journal, Trenton, 1831. Witherspoon, Hart, and Clark 
were among the signers ; and Witherspoon signed the Articles of 
Confederation. Paterson signed the Constitution of the United 
States. He was nine times Governor of the State; Washington 
appointed him an Associate Justice of the Supreme Court. Eleven 
were delegates to the old Congress, and twelve to the national. 
Paterson, Dickenson, and Frelinghuysen became United States 
Senators (1 789-1 799). Two became Presidential Electors— Dick- 
enson, in 1793, and James Mott, in 1809. 



Constitutions Determined by Contingencies 

than a convention to frame a new plan of govern- 
ment, but the functions of both were probably in 
the mind of the electors when they were chosen. 
They exercised both functions, and, on the 2d of 
July, promulgated the first constitution of the 
State. Their work, like that of similar bodies in 
New Hampshire and South Carolina, was declared 
to be temporary and provisional. If a reconcilia- 
tion should take place, this charter — for so the 
Burlington convention styled its work — should be 
null and void. Otherwise it should be " firm and 
inviolable." 

The course of the people of Delaware in secur- 
ing a constitution conformed with the sugges- 
tion of Congress, and with normal requirements. 
The Delaware House of Assembly in July, 1776, 
passed a resolution in accord with the Declara- 
tion of Independence ; and, further, provided for a 
special election, on the 19th of August, of a con- 
stitutional convention, to consist of thirty persons, 
ten from each county in the State. These were 
to assemble at Newcastle on the 27th of the 
month, " and immediately proceed to form a gov- 
ernment on the authority of the people of this 
State." During a session of twenty-eight days 
they adopted the first constitution of Delaware. 
This was the first constitution in the country 
made by the representatives of the people chosen 
for the express purpose, and the first convention 
that was normal in all respects.* 

* The Delaware Convention consisted of thirty members. 

119 



Constitutional History of the American People 

The Pennsylvania Assembly was superseded in 
July, 1776, by a provincial convention composed 
of representatives chosen from the counties of 
the province through the instrumentality of the 
county committees. The resolution of Congress 
of the 10th of May led to the meeting at Carpen- 
ter's Hall, Philadelphia, on the 18th of the follow- 
ing June, which was attended by the leaders of 
the Revolutionary cause in the city and the ad- 
joining counties. At this meeting it was decided 
that a provincial convention should be called " for 
the express purpose of forming a new govern- 
ment for this province on the authority of the 
people only." But the meeting proceeded to fix 
the requirements of those entitled to vote at the 
coming election of delegates, prescribing the quali- 
fications which were incorporated in the first 
constitution of the State. A new apportionment 
of representation was agreed upon, and the elec- 
tion was fixed for the 8th of July. A conven- 
tion assembled a week later at Philadelphia, and 
adjourned on the 28th of September, having pro- 
mulgated the first constitution of the common- 
wealth.* It assumed the functions of a legisla- 

George Read, one of the signers both of the Declaration of Inde- 
pendence and of the national Constitution, was president. Read, 
Van Dyke, McKean, and Evans, were members of the old Con- 
gress; Van Dyke, McKean, and Dickinson signed the Articles of 
Confederation, Five became members of the national Congress — 
Read and Richard Bassett as Senators ; Bassett also signed the 
national Constitution. McKean became Chief Justice of Pennsyl- 
vania ; Sykes, a Presidential Elector in 1793. 

* The Proceedings of this Convention, and that of 1790, Har- 
risburg, 1825. It had ninety-six members. Franklin was presi- 

120 



A Commission Supersedes the Government 

tive body, choosing delegates to Congress and 
appointing a council of safety with executive 
powers, thus combining double functions, as did 
the conventions of New Hampshire and South 
Carolina. Thus it was not a constitutional con- 
vention of the normal type. 

In North Carolina, as in South Carolina and 
Virginia, the movement to reorganize the colonial 
government originated in a provincial convention 
which had taken the place of the General Assem- 
bly. This decision was made at Halifax early in 
April, 1776, and the work of preparing a constitu- 
tion was given to a committee, but the committee, 
owing to the shifting state of affairs in the col- 
ony and of its own opinions, accomplished noth- 
ing, and the government of the colony was placed 
for a while in a commission consisting of leading 
patriots. These took the initiative in reorganiz- 
ing the government by calling an election of dele- 
gates to a congress to assemble at Halifax on the 
12th of November, with power both to legislate 
and to frame a constitution. Thus elected and 



dent. Five of the members were signers — Franklin, Clymer, 
Smith, Wilson, and Ross. Four signed the national Constitu- 
tion — Franklin, Mifflin, Clymer, and Wilson. Four others, also, 
were members of the old Congress— Matlock, M'Clean, Samuel 
and Thomas Smith. Ten became members of Congress. Frank- 
lin and Mifflin became Governors of the State. Wilson was ap- 
pointed Associate Justice of the Supreme Court by Washington, 
and was a Presidential Elector in 1789. His decision in Chisholm 
vs. Georgia (2 Dallas, 419) ranks among the great decisions. It 
is only within recent years that Wilson's greatness has been dis- 
covered, although Washington declared him to be the ablest con- 
stitutional lawyer in the Federal Convention. 

121 



Constitutional History of the American People 

chosen for a particular purpose, it prepared a 
declaration of rights and promulgated a form of 
government, having first ratified it, " in open Con- 
gress," on the 1 8th of December, 1776.* Thus 
this body, like the New Hampshire and New 
Jersey conventions, performed a double function. 
The constitution which it framed continued in 
force until 1835 without amendment; as amended 
then, and again in 1854, it continued in force 
until 1863. 

As early as January, 1775, the Provincial Con- 
gress of Georgia organized; and, in conformity 
with the recommendation of the Continental Con- 
gress, it adopted a temporary form of government 
on the 1 5th of April, 1 776,similar to that first formed 
in New Hampshire. It continued until the pro- 
mulgation of the constitution of 1777. The con- 
vention which made this instrument consisted of 
delegates elected in the parishes and districts of 
the State, from the 1st to the 10th of September, 
1776. The election had been called by the Presi- 



* The Journal of this Convention in Colonial Records of North 
Carolina, Vol. x., pp. 913-1013. It consisted of 172 delegates — 
Richard Caswell, president ; William Harper and Joseph Hewes 
were among the signers ; Cornelius Harnett signed the Articles 
of Confederation. Ten of the members became delegates to the 
old Congress, and sixteen to the national ; Samuel Ashe be- 
came Governor of the State. The constitution is said to be the 
work of Thomas Jones, Thomas Burke, and Richard Caswell. 
Charles Robeson, John Carter, and John Haile, were from Wa- 
tauga (Tennessee). Six members had signed the Mecklenburg 
Resolutions (Wheeler, Vol. i., p. 85). Memucan Hunt signed the 
treaty with Texas, April 25, 1838. Samuel Ashe was a Presi- 
dential Elector in 1805 and 1809. 

122 



Conventions for Ratification 

dent of the commonwealth by proclamation. The 
chief purpose of the proclamation was to put the 
colony in a more perfect state of military defence. 
Thus the body which framed this constitution as- 
sumed the functions of a Legislature as well as of 
a constitutional convention. Eleven years' ex- 
perience demonstrated its defects, and when the 
ratification of the national Constitution was in 
progress in the State, the opportunity was taken 
to amend it. A convention, consisting of three 
delegates from each county, assembled at Augusta 
on the 24th of November, 1788, and undertook to 
amend the State constitution and to consider the 
Constitution of the United States, which had just 
gone forth from Philadelphia. The State consti- 
tution made by this convention was itself sub- 
mitted to a second convention for ratification, 
which met at Augusta on the 4th of January of 
the following year, and suggested changes in the 
constitution which it was called to consider; a 
third was summoned and met on the 4th of May, 
1789, and two days later ratified that known as 
the constitution of 1789. This instrument con- 
tinued in force nine years, when another conven- 
tion assembled at Louisville on the 8th of May, 
and on the 30th promulgated the third constitu- 
tion of the State. It took effect on the first Mon- 
day of October of that year, and, several times 
amended, continued in force until 1865. 

In New York, as in New Jersey, there was a 
strong anti-revolutionary party, which for a time 
delayed the formation of a State government. 

123 



Constitutional History of the American People 

Delay was due to the better organization of the 
opposition rather than to public sentiment. On 
the 31st of May, 1776, the Congress of the colony, 
the successor of several congresses unfriendly to 
a change of government, provided for the election 
of another, which should be empowered to insti- 
tute a new government. On the 9th of July the 
convention met at White Plains.* It formally 
adopted the Declaration of Independence, and at- 
tempted to make a constitution. On the 10th 
the body changed its title from " Provincial Con- 
gress of the Colony " to " The Convention of the 
Representatives of the State of New York," and 
agreed that the subject of a new form of govern- 
ment should be taken up on the 16th. When this 
day arrived the British had entered New York, 
and legislative business was so pressing that the 
consideration of a constitution was postponed un- 
til the 1st of August. All magistrates and civil 



* Some account of the convention is given in the appendix to 
the Proceedings and Debates of the New York Convention of 
1821. Albany, 1821. The ninety-six delegates did not all attend 
at one time. Philip Livingston and Lewis Morris were among 
the signers ; James Duane and William Duer signed the articles ; 
Gouverneur Morris also signed the articles, and, as a delegate 
from Pennsylvania, the Constitution of the United States. 
The constitution was adopted (substantially as John Jay wrote 
it) " on the evening of Sunday, the 20th of April." Sixteen of 
the members became delegates to the old Congress ; and to the 
national Congress, John Sloss Hobart, and Gouverneur Morris, 
of the Senate. Jay became the first Chief Justice of the United 
States and afterwards Governor of New York ; Taylor also be- 
came Governor ; Duane and Hobart became United States Dis- 
trict Judges; Yates and Veeder were Presidential Electors in 
1793 ; Lewis Morris and Ten Broeck, in 1797. 

124 



Disturbed Condition of Public Business 

officers well affected towards the cause of inde- 
pendence were urged meanwhile, by resolve of 
the convention, to continue the exercise of their 
duties until they should receive further orders. 
The only change made was in the style of judi- 
cial business. Processes henceforth should issue 
in the name of the State of New York. When 
the ist of August came, a committee of thirteen 
was appointed to prepare and report a constitu- 
tion. To this committee several eminent men 
belonged, among them John Jay, Gouverneur 
Morris, R. R. Livingston, and Robert Yates. The 
report of the committee was delayed from time 
to time by the condition of public affairs. Not 
only was the committee unable to perform its 
duty, but the convention itself was frequently in- 
terrupted and compelled to change its place of 
meeting. Thus at one time it assembled at Har- 
lem ; at another at Kings Bridge ; at another at 
Odell, in Philip's Manor; and later at Fishkill, 
at White Plains, and at Kingston, At one of 
these meetings only three members were able to 
attend. The convention, therefore, was a com- 
mittee of safety exercising legislative and admin- 
istrative functions. On the 6th of March, 1777, 
at Kingston, the committee formally appointed to 
prepare a constitutional form of government was 
directed to report six days later, and on that day 
the draft of a constitution, written by John Jay, 
was read. It was discussed until the 20th of 
April, when the convention, still being in session 
at Kingston, adopted it unanimously. But the 

125 



Constitutional History of the American People 

form of government adopted, though not sub- 
mitted to the people for ratification, met with 
general approval. It was amended in 1801, and 
continued in force forty-four years. 

No State was more peculiarly situated during 
the Revolution than Vermont. Its territory was 
claimed by Massachusetts, New Hampshire, and 
New York. Territorial disputes engendered by 
these hostile claims raged through the period of 
the Revolution. The State, meanwhile, effect- 
ually maintained its autonomy and independence. 
It was among the first to respond to the recom- 
mendation of Congress, and its patriot leaders 
assumed the responsibility of initiating a new 
form of government by issuing letters, which 
served as writs of election, to the different towns, 
urging them to choose delegates to assemble at 
Dorset on the 24th of July, 1776.* The questions 
of independence and of a new government were 
before this convention, and were postponed until 
January of the following year, when the con- 
vention assembled at Westminster and declared 



* See Vermont Historical Society Collection, Vol. i., and 
Slade's State Papers, passim. This convention had fifty mem- 
bers — including Ira Allen, the historian of the State; H. Allen, 
later member of the national Congress ; Thomas Chittenden, later 
Governor of the State; also, Matthew Lyon, whose vote made 
Jefferson President. He was convicted, fined $1060.90, and im- 
prisoned, under the sedition law; but on July 4, 1840, twenty 
years after his death, Congress ordered the fine to be repaid to 
his heirs, with interest from February, 1790. This convention re- 
assembled at Dorset, September 25th, with fifty-eight members — 
among whom were H. Allen, Ira Allen, Thomas Chittenden, and 
Moses Robinson ; the latter became Governor of the State in 1789. 

126 



Pennsylvania and the Vermont Constitution 

Vermont a free and independent State.* On the 
2d of July of that year it reassembled at Wind- 
sort and continued in session six days, during 
which time it formulated the first constitution. 
This was not submitted to the people for ratifica- 
tion, but, as promulgated, was approved by the 
Legislature in 1779 and again in 1782, by which 
act it became the law of the State. As is well 
known, it closely followed the lines of the first 
constitution of Pennsylvania, chiefly through the 
efforts of Thomas Young, a citizen of Philadel- 
phia, who, on the nth of April, 1777, had pub- 
lished an address in which he urged the inde- 
pendence of the State and the election of a con- 
vention to form a constitution. The constitution 
of Pennsylvania had just been adopted, and was 
suggested as a suitable model for Vermont.^ 
This convention assumed both legislative and con- 
stitutional functions. In 1786, as provided in the 
constitution, a slight revision was made by the 
council of censors, an interval of seven years hav- 
ing elapsed, and the revised instrument was again 
adopted by the Legislature and declared to be 

* Westminster, October 30,1776; seventeen members; the 
session, beginning January 15, 1777, had twenty -one members, 
among them Thomas Chittenden, H. Allen, and Ira Allen. 

t Windsor, June 4th ; seventy-two members, including Thomas 
Chittenden, Ira Allen, H. Allen, G. Olin, and Israel Smith — the 
two latter members of Congress under the Constitution. It reas- 
sembled at Windsor, July 2d, with twenty-four members, among 
them Thomas Chittenden. 

X The Pennsylvania sources of the Vermont Constitution are 
shown in The Constitution of the State of Vermont, etc. Brat- 
tleborough, C. H. Davenport & Co., 1891. pp. 40-44. 

127 



Constitutional History of the American People 

a law of the State. In 1793 the council caused 
another revision, the convention which made it 
adjourning on the 9th of July. This revision 
was formally adopted by the Legislature on the 
2d of November and declared to be the supreme 
law of the State. It was not again altered in 
the eighteenth century, but in the nineteenth was 
four times amended, chiefly in its administrative 
provisions. The council of censors, which by the 
terms of the constitution of Vermont was em- 
powered to call a convention once in seven years, 
was suggested from the constitution of Penn- 
sylvania ; and the conventions which have been 
thus called, though more numerous than found 
in any other commonwealth, have convened un- 
der the authority of the government of the 
State. 

The change from colony to commonwealth was 
effected in Connecticut by act of the General 
Assembly that met on the 10th of October, 1776. 
King George had " unjustly levied war against this 
and the other United States of America," had " de- 
clared them out of his protection, and abdicated 
the government of this State," thus absolving its 
people from allegiance to the Crown of Great Brit- 
ain. As the Representatives of the United States 
in General Congress assembled had declared that 
" these United States are and of right ought to be 
free and independent," therefore all political con- 
nection between the people of Connecticut and 
Great Britain was totally dissolved. The form of 
civil government continued as established by the 



Revolution by Act of Assembly 

charter received from Charles the Second, so far 
as an adherence to the charter was "consistent 
with an absolute independence of this State of the 
Crown of Great Britain." All officers, civil and 
military, already appointed by the State, continued 
in office, and the laws of the colony remained in 
force until otherwise ordered. The change was 
not formally ratified by the people, either in con- 
vention or at the town - meetings. However, it 
was supported by public opinion. In no State 
was the change from colony to commonwealth 
made an issue at the polls. 

In Rhode Island the change was effected as in 
Connecticut. The General Assembly, on the 4th 
of May, passed an act discharging the people of 
that colony from allegiance to the King. Some- 
what curiously the vote was unanimous in the 
Upper House, but not unanimous in the Lower, 
six of the sixty members present voting in the 
negative. It is not improbable that more than 
one -tenth of the electors in both States disap- 
proved of the act of separation. The change 
from colony to State was not overwhelmingly 
popular anywhere. Though constitutional forms 
were followed, the change was accomplished by 
the few who were leaders of the people. It was a 
representative, not a democratic, act. Not until 
the nineteenth century was well begun were con- 
stitutional changes submitted to the test of popu- 
lar vote, and not until the nineteenth century was 
half gone did it become customary to submit pro- 
posed constitutional changes, as separate proposi- 
1. — 1 129 



Constitutional History of the American People 

tions, for the approval of the electors, either at 
regular or special elections. 

Though Massachusetts was the first colony to 
apply to the Continental Congress for advice re- 
specting a change in government, it was the last 
of the original States to adopt a constitution. Its 
constitution may be said to have been in progress 
nearly four years. On the 5th of May, 1777, the 
Massachusetts Assembly recommended that the 
people in their several town elections should 
choose representatives to the next General Court 
fully empowered to form a constitution of govern- 
ment for the State, but this should be submitted 
to the electors for ratification, and unless approved 
by two-thirds of them should be considered as re- 
jected. In June a committee of twelve was ap- 
pointed to prepare a constitution, and it reported 
in the following January. The draft received the 
approval of the General Court on the 28th of Feb- 
ruary, 1778, and was submitted to the people on 
the 4th of March. Not more than one -fifth of 
the electors voted for this constitution, and many 
towns made no return whatever. The chief ob- 
jection to the instrument was an indirect one — 
that it had not been made by proper authority. 
On the 20th of February of the following year 
the General Court, profiting by recent experience, 
submitted two questions to the electors of the 
towns — whether they desired a new constitution, 
and whether they would empower the members 
of the General Court to call a convention for the 
sole purpose of forming one. By large majorities 

130 



Adams Writes the Massachusetts Constitution 

the people returned affirmative answers, and on 
the 17th of June the General Court provided for 
an election of delegates to a convention to meet 
on the 1st of September. Assembling in Boston 
on that day, it appointed a committee of thirty to 
formulate a declaration of rights and a constitu- 
tion of government, and adjourned until the 28th of 
October, principally because several towns in the 
State were not yet represented. The Committee 
of Thirty began its -work at once and delegated to 
John Adams the preparation of a declaration of 
rights, and to him, together with James Bowdoin 
and Samuel Adams, the formation of a draft of 
a constitution. The subcommittee, however, re- 
ferred the entire matter to Adams, just as the 
committee on the Declaration of Independence, 
four years before, had referred its preparation to 
Jefferson. Adams thus wrote the entire instru- 
ment* On reassembling, on the 28th of October, 
the report of the Committee of Thirty was ac- 
cepted by the convention, which proceeded to dis- 
cuss the report. It adjourned on the nth of 
November until the 5th of January, 1780, in order 
that there might be a better attendance. Not 
until the 27th of the month were there sufficient 
members present to proceed to business. The 
discussions continued until the 2d of March, when 
the convention adjourned to the first Wednesday 

* For John Adams's account of his part in preparing the 

Massachusetts Constitution of 1780, see "Life and Works of 

John Adams," The Model, Vol. i., p. 287; Vol. iv., p. 215-267; 
Vol. v., p. 463. 

131 



Constitutional History of the American People 

of June, having provided that the opinion of the 
people should be taken on their work in the in- 
terval. Reassembled on the 7th of June, and with 
official evidence from the returns that the whole 
constitution had been approved by more than 
two -thirds of the electors, the convention on the 
1 6th officially proclaimed the instrument " to 
be the constitution of government established by 
and for the inhabitants of the State of Massachu- 
setts Bay"; and further declared that the new 
constitution thus formed contained all the princi- 
ples of representative government in America. 
Its excellence has been attested by its continua- 
tion in force until the present time.* Though 
amended thirty -four times, the changes have not 
affected the principles on which the plan rests, 
but are chiefly administrative in character.! 

* See Journal, Boston, 1832; also Convention of 1820, Jour- 
nal, pp. vi.-vii. 

f The convention had 320 members. Of these John Adams, 
Samuel Adams, John Hancock, and Robert Treat Paine were 
signers ; John Hancock, Samuel Adams, and Samuel Holton 
signed the Articles of Confederation ; Gorham signed the Con- 
stitution of the United States. John Hancock, Samuel Adams, 
Increase Sumner, James Sullivan, Caleb Strong, and Levi Lin- 
coln became Governors of the State — Strong and Lincoln each 
twice. William Cushing declined the office of Chief Justice of 
the United States, and Levi Lincoln that of Associate Justice. 
John Lowell became United States District Judge. Theophilus 
Parsons was for a short time Attorney- General of the United 
States under John Adams. Ten of the members became dele- 
gates to the old Congress and twelve to the national — of these 
George Cabot, Benjamin Goodhue, and Caleb Strong were Sena- 
tors ( 1 789-1803). Seventeen of the members became Presidential 
Electors (1789-1821). 



CHAPTER V 

THE CONSTITUTIONAL ELEMENTS 

When the territory south of the Ohio was or- 
ganized by act of Congress on the 26th of May, 
1790, the people of Kentucky were already asking 
for admission to the Union. As early as 1784 
they had sought separation from Virginia, had 
met twice in convention at Danville, and formu- 
lated petitions to the Virginia Legislature asking 
for separation. A third convention unanimously 
voted independence. The cession of western 
lands by Virginia solved the problem of the in- 
dependence of Kentucky, and removed the last 
obstacle in the way of the organization of a State 
government. On the 1st of June, 1792, the State 
was received into the Union "as a new and entire 
member of the United States of America." An- 
other convention had assembled at Danville on 
the 2d of April, 1792, and in seventeen days had 
made a constitution.* It was not submitted to 

* The Kentucky convention of 1792 had forty-five members. 
George Nicholas is said to have been the principal author of the 
constitution. He, John Campbell, and Matthew Walton became 
members of Congress. Isaac Shelby became the first Governor 
of the State. The vote on the pro-slavery clause in the consti- 
tution stood twenty-six for, sixteen against. Among the sixteen 

*33 



Constitutional History of the American People 

the people for ratification. The population of the 
State came chiefly from Virginia, and the new 
constitution closely resembled that of the parent 
State. It continued in force seven years. Its de- 
fects were chiefly in the organization of the legis- 
lative and judiciary, and in the provisions for the 
apportionment of representation. On the 2 2d of 
July, 1799, a constitutional convention met at 
Frankford and continued in session until the 
7th of August, at which time it promulgated a 
new constitution, to take effect on the 1st of Jan- 
uary, 1800. This second constitution of the com- 
monwealth, remedying the defects of the first, 
continued in force fifty years.* 



were six ministers — John Bailey, Benedict Swope, Charles Kav- 
enaugh, George Smith, James Crawford, James G. Garrow. Rob- 
ert Breckinridge was a member of this convention. Five served 
as Presidential Electors — Benjamin Logan (1793), Shelby (1797, 
1801, 1805), Hubbard Taylor (1805, 1809, 1813, 1817, 1821, 1825), 
Matthew Walton (1809), Richard Taylor (1813, 1817, 1821, 1825). 
For a list of the members of this convention I am indebted to 
Hon. R. T. Durrett, of Louisville, and to Mr. W. D. Hixson, Li- 
brarian, Maysville, Kentucky. 

* The Kentucky convention of 1798-99 consisted of fifty-seven 
members. A. S. Bullitt (president), John Adair, Richard Taylor, 
Thomas Clay, Samuel Taylor, William Steele, and Caleb Wallace 
were members of the convention of 1792. William Logan, Henry 
Crist, Thomas Sandford, and John Rowan became members of 
Congress, and John Adair, John Breckinridge, and Buckner 
Tl "uston, United States Senators (1801-11). Harry Junes be- 
came United States District Judge. Breckinridge, one of Jeffer- 
son's intimate friends, became Attorney-General of the United 
States under him. Felix Grundy became Chief Justice of the 
State ; later, having removed to Tennessee, member of Congress 
(1811-14), United States Senator (1829-38), Attorney-General un- 
der Van Buren (1838-40), and again Senator (1840) — the year of 
his death. William Irvine became a Presidential Elector in 1805 

134 



The State of Franklin 

At the time when North Carolina ceded her 
western lands to the United States a portion of 
them, known as Washington County, was already 
occupied and called East Tennessee. The North 
Carolina Assembly showed little disposition to 
part with this territory, and repealed its act of 
cession in the year in which it was passed. Mean- 
while the people of Tennessee had assembled in 
convention at Jonesboro and attempted to organ- 
ize an independent State government. The re- 
peal of the North Carolina act caused a second 
convention at Jonesboro, which voted indepen- 
dence and gave to the State the name Franklin, 
or Frankland ; both titles being used. The Jones- 
boro convention assembled in December, 1784, 
had agreed on a constitution, and had submitted 
it for popular approval. It provided that before 
the year closed the people should choose a second 
convention for the sole purpose of ratifying the 
constitution, or amending it as public opinion 
might demand. This ratifying convention met at 
Greenville on the 14th of November of the follow- 
ing year. The opinions respecting the constitu- 
tion laid before the convention were so various that 
it was found quite impossible to harmonize them. 
After much debate a committee was appointed 
to prepare and submit a form of government. It 
based its work on the constitution of South Caro- 
lina, though deriving help from other Southern 

and 1809. The list of members was sent me by Hon. R. T. 
Durrett, Louisville, and by Mr. W. D. Hixson, Librarian, Mays- 
ville, Kentucky. 

135 



Constitutional History of the American People 

constitutions. Thus its work was in a measure 
composite. The convention, organized as a com- 
mittee of the whole, immediately rejected the re- 
port of the committee, whereupon, with equal haste, 
the constitution of North Carolina was read, ap- 
proved, and adopted. To this decision there was 
strong dissent, especially from the members of 
the late committee, whose objections and those of 
other members of the convention were formally 
set forth in the journal. A State government 
was, however, organized, and official notice was 
sent to the Governor of North Carolina, informing 
him that the inhabitants of Franklin had declared 
themselves a free and independent State. The 
rejection of the composite plan reported by the 
committee led to the formation of a North Caro- 
lina party in Franklin, and for a time great dis- 
order prevailed. As early as 1785 a delegate was 
sent to Congress to present to that body a me- 
morial for the admission of Franklin as a State 
of the Union. It was not until 1790 that Con- 
gress accepted Tennessee as a cession from the 
State of North Carolina. For nearly six years 
Franklin existed as a quasi State, although it 
was not recognized by Congress or by the other 
States. 

The organization of the territory south of the 
river Ohio in 1790 made it possible for Tennes- 
see, like Kentucky, to proceed normally in its 
course for admission, and six years later, on the 
nth of January, a convention assembled at Knox- 
ville, continuing in session until the 6th of Feb- 

136 



Eminent Personages in the Conventions 

uary, when it promulgated a constitution.* This 
was followed by the admission of the State on the 
ist of June. The constitution thus approved con- 
tinued in force until 1834. 

These conventions enrolled many eminent men. 
If the federal convention be included, five men af- 
terwards Presidents of the United States assisted 
in the work. Washington and Madison, and Gerry, 
the fourth Vice-President, belonged to the federal 
convention ; John Adams to the Massachusetts 
convention of 1779. Jefferson was chosen a dele- 
gate to the Virginia convention of 1776, but was 
represented by an alternate. As the author of the 
Declaration of Independence he was, in a sense, 
a member of all the conventions, for it became the 
common bill of rights. Andrew Jackson was a 
member of the Tennessee convention of 1796. 
Jay, Ellsworth, and Rutledge became, in turn, 
Chief Justice of the United States: the first was 
a member of the New York convention of 1777, the 
second and third, of the federal convention. Seven 

* See Journal of this convention, Knoxville, 1796; reprint, 
Nashville, 1832. It consisted of fifty -five members. William 
Blount, the president, had signed the Constitution of the United 
States as one of the delegates from North Carolina; John Adair 
became Governor of the State (1820-24). Eight of the delegates 
became members of Congress, and of these four were United 
States Senators — William Cocke (1796-97, 1 799-1 805), Andrew- 
Jackson (1797-98, 1823-25), William Blount (1796-97), Joseph An- 
derson (1797-1815). Tradition says that the State was named 
Tennessee on motion of Andrew Jackson. W. C. C. Claiborne 
was a delegate. The original draft of the constitution is said to 
have been made by Charles McClung. See also Caldwell's 
Studies in the Constitutional History of Tennessee, Cincinnati, 1895, 
Chap. v. 

137 



Constitutional History of the American People 

delegates became associate justices of the court. 
Nine were cabinet ministers. The members, in 
the aggregate, numbered about seventeen hundred, 
of whom upwards of three hundred served in Con- 
gress — the greater part under the Constitution. 
The State Legislatures enrolled more than Con- 
gress. Some became Governors, and a greater 
number became members of the State judiciary. 
Twenty-seven were signers of the Declaration of 
Independence ; fourteen, of the Articles of Con- 
federation ; and of the thirty-nine who signed the 
Constitution of the United States, one-third were 
members of State conventions. Witherspoon 
signed the Declaration, the Articles of Confed- 
eration, and the constitution of New Jersey. 
Franklin and George Clymer were signers of 
the Declaration, the Constitution of the United 
States, and the first constitution of Pennsylvania ; 
Franklin was president of the convention which 
made it. By a curious coincidence, George Read 
signed the first constitution of Delaware, as pres- 
ident of the convention, and, with Franklin, the Dec- 
laration and the Constitution of the United States. 
James Wilson was a signer of the Declaration, the 
national Constitution, and the second constitution 
of Pennsylvania. Gouverneur Morris signed the 
constitution of New York, the Articles, and the 
Constitution of the United States. Roger Sher- 
man, who has the unique distinction of signing 
our three great state papers — the Declaration, 
the Articles, and the Constitution — was a mem- 
ber of Congress when the Connecticut Legislature 

138 



Our Revolutionary Law-givers 

adopted the bill of rights of 1776. Thus it ap- 
pears that no one signed these great papers and 
a State constitution also. Richard Henry Lee 
might have stood in that unique place in history. 
He signed the Declaration of Independence, the 
constitution of Virginia, the Articles of Confeder- 
ation, and was elected a delegate to the federal 
convention, but declined to serve. 

To these men was given the unparalleled oppor- 
tunity of establishing a republican form of govern- 
ment in the new world. When one reflects on 
the momentous consequences of this act, he may, 
in some degree, measure the importance and suc- 
cess of their labors. Happy for America that she 
had such men at so critical a moment in her his- 
tory. A hundred and fifty years of colonial ex- 
perience in the elements of representative govern- 
ment contributed to train those whom posterity 
will always call The Fathers. In ancient times 
codes and constitutions were associated with the 
names of individuals — a Draco, a Lycurgus, a 
Solon. Three Americans must henceforth take 
rank among the law- givers — Thomas Jefferson, 
author of the Declaration of Independence ; John 
Jay, author of the New York constitution of 
1777; and John Adams, author of the Massa- 
chusetts constitution of 1780. Each derived some 
help from precedents and the suggestions of col- 
leagues. If we knew as much about the genesis 
of ancient codes as about that of the American 
constitutions, Draco, Lycurgus, and Solon might 
divide their honors with forgotten contempora- 

139 



Constitutional History of the American People 

ries. Codes and constitutions are naturally com- 
posite in their origin. Other forces than the 
varied membership of a convention helped to 
work out these constitutions. One constitution 
influenced another, as Massachusetts influenced 
New Hampshire ; Pennsylvania, Vermont ; Vir- 
ginia, Kentucky; North Carolina, Tennessee — as 
the fifteen State conventions adopted before 1787 
influenced that of the United States, and as this, 
in turn, influenced all which the commonwealths 
have since adopted — nearly a hundred in number. 
From 1776 to 1800 interstate influence was feeble. 
The survival of what is supposed to be the fittest 
makes such instruments composite, and has al- 
ready transformed some into small treatises on 
government. 

All the States had constitutions. South Caro- 
lina, New Hampshire, and Vermont had two each 
before the national Constitution was made. Rhode 
Island and Connecticut had unwritten constitu- 
tions, for they had outgrown their charters, though 
nominally organized under them. The federal 
convention made abundant use of this mass of 
precedent. It cast the supreme law of the United 
States into the form prevailing in the .common- 
wealths, dividing the powers of government into 
legislative, executive, and judicial, and, with few 
exceptions, making the grant of power general. 
State precedents were followed in calling the na- 
tional Legislature the Congress, with two branches, 
styled the Senate and the House of Representa- 
tives, also in calling the executive President, and 

140 



The Constitution Founded on State Laws 

the courts supreme and inferior. The title Presi- 
dent ran back to the first charter of Virginia. 
The regular retirement of a portion of the Sen- 
ate, the provision for a census, the right of the 
House to originate money bills, the President's 
message, his oath of office, his power to veto, to 
pardon, to fill vacancies, and to command the army 
and navy, and the Presidential succession were all 
suggested from the States. The basis of repre- 
sentation in Congress — that of the States for the 
Senate and districts for the House — had precedents 
in the method of choosing the two branches of the 
Legislature in Virginia and Massachusetts. The 
Vice-President was a State suggestion. As we 
have seen, the manner of choosing the Governors 
varied, being direct in the North and indirect in 
the South. The convention, therefore, had a fair 
field for compromise, and fell back on special elec- 
tors. Maryland, alone of all the States, had an 
Electoral College, which chose its State Senators. 
It has been said that this was the model for the 
Presidential Electoral College. If true, the con- 
vention failed to copy the first quality of the prec- 
edent. Maryland consists of two parts, the east- 
ern and the western shore, having little in common. 
To give them an artificial bond and hold the com- 
monwealth together by stronger ties, the Annapolis 
convention of 1776 devised the choice of the State 
Senate by an Electoral College. The voters in each 
county chose two electors every fifth year to meet 
at Annapolis. Twenty-four constituted a quorum, 
and were empowered to choose fifteen Senators 

141 



Constitutional History of the American People 

"either out of their own body or the people at large." 
Had the federal convention strictly followed the 
Maryland precedent, Presidential Electors would 
vote, not by States, but as an electoral convention, 
similar to that which nominates the national ticket. 
Evidently the framers did not aim at consolidation 
— the dominant idea in the Maryland precedent. 
It was left to political parties to make the Presi- 
dential Electors a unifying body, but in doing so 
parties have stripped the electors of discretionary 
power and reduced them to a registering machine. 
The Maryland method of choosing Senators was 
really no precedent, except for the mere word — 
" electors." The device adopted in 1787 for choos- 
ing the President was original with the convention, 
was not founded on experience, and has failed to 
<1 work as planned. 

The clause for the rendition of fugitives from 
justice was a transcript from the New England 
Confederation of 1643, and conformed with colo- 
nial legislation. Provision for the admission of 
new States was an obvious necessity, and followed 
a specific clause on the subject in the Ordinance 
of 1787. To the national judiciary the States con- 
tributed the life-tenure and the circuit system, 
though these had long been the practice in Eng- 
land. Had the commonwealths made judicial 
offices elective, and the occupancy running for 
years, and abolished the circuit system, the na- 
tional Constitution would undoubtedly have done 
the same. The national Constitution profited by 
the experience of the commonwealths in legisla- 

142 



Analysis of the National and State Constitutions 

tive procedure ; in fixing the incompatibility of 
certain State and federal offices ; and, most mark- 
ed of all, in soon responding, in the adoption of 
the first ten amendments, to the powerful prece- 
dents of State bills of rights. The original feat- 
ures of the national Constitution consist in the 
composition of provisions rather than in their 
novelty. As it approached novelty it entered 
debatable ground. Organically, as well as law- 
fully, the commonwealth constitutions are a part 
of the national, and the latter is a part of them. 
It was in a large degree a generalization of ex- 
perience under the first ones, and has strongly 
tended to bring to a common form all the con- 
stitutions proposed and adopted since 1787. It 
effected little of this in the eighteenth century. 
The changes made in State constitutions from 
1789 to 1800 were chiefly in recognition of the 
existence of a federal government; in a few 
clauses providing for the apportionment of repre- 
sentation on the basis of the federal census ; in 
prescribing the qualifications of Congressmen ; 
and in defining what State and federal offices are 
incompatible. Not until political parties were in 
full swing did the national Constitution enter upon 
an administrative change. Eventually, political 
administration wrought amendments which are 
recorded in the text of the supreme law of the 
Union and of the several States. But mere verbal 
changes only intimate this revision of ideas. The 
unwritten law itself has been revised. The ques- 
tion, What is constitutional ? is answered by what 

143 



Constitutional History of the American People 

practical politics may succeed in reading into a 
constitution. There is no standard dictionary of 
politics. Textual definitions count for little in 
government. The various meanings which now 
for more than a century have been read into the 
national Constitution by successful political par- 
ties have been crystallized, for a time, in the con- 
stitutions of the commonwealths. The supreme 
law of the land thus becomes an inconstant quan- 
tity. Its variations are made evident only after 
time has set them in perspective. 

The boundaries of the United States agreed 
upon in the treaty of peace of 1782 remained un- 
changed, except in the Oregon country, for twenty 
years, and to this day constitute portions of the 
boundaries of twenty-nine commonwealths. Many 
years passed before these were surveyed. During 
these twenty years the States ceded their western 
lands to the national government and took their 
present boundaries. On the 13th of July Con- 
gress passed the act familiarly known as the 
Ordinance of 1787, by which the cession north of 
the Ohio was organized as the Northwest Terri- 
tory, in one district, divisible at the discretion of 
Congress. The laws of inheritance operated with- 
out discrimination — the estates of resident and 
non-resident proprietors in the Territory who died 
intestate descending in equal parts to the heirs. 
Wills were attested by three witnesses, and con- 
veyances of real estate by two. An exception 
was made in favor of the French and Canadian 
inhabitants settled at Kaskaskia, St. Vincents, and 

144 



Law-making Without Legislative Action 

the neighboring villages, who professed to be citi- 
zens of Virginia. To them the laws of Virginia 
applied respecting wills and deeds. The Gover- 
nor was appointed by Congress for three years, 
but might be removed sooner by the President. 
He resided in the Territory, and owned within it 
a freehold estate of one thousand acres of land. 
Congress also appointed a secretary, commis- 
sioned by the President, for four years. He was 
required to reside in the district and own a freehold 
estate in it of five hundred acres. The court con- 
sisted of three judges, two of whom might form 
a court. Each judge was a resident, possessed 
of a freehold estate of five hundred acres in the 
Territory. The court exercised a common-law 
jurisdiction. The judges were in commission dur- 
ing good behavior. A peculiar provision in the 
act determined the early laws. The Governor 
and the judges might adopt such laws of the 
original States, criminal and civil, as in their 
judgment seemed best suited to the circumstances 
of the Territory. They reported these laws to Con- 
gress, and, unless disapproved, they continued in 
force.* The Territorial Legislature might change 
these laws later if it saw fit. The Governor was 
made commander-in-chief of the militia of the 
Territory, with power to appoint all officers below 

* Many of the early laws of the Territory were adopted from 
the State codes, especially from Pennsylvania, New York, Mas- 
sachusetts, Virginia, New Jersey, and Kentucky. See Laws of 
the Territory of the United States Northwest of the Ohio, Cin- 
cinnati, W. Maxwell, mdccxli., pp. 225. (" Maxwell's Code.") 
Facsimile Reprint, Robert Clarke & Co., Cincinnati. 
I.— K 145 



Constitutional History of the American People 

the rank of general officers ; these were appointed 
and commissioned by Congress. He also ap- 
pointed magistrates and civil officers in each 
county or township. It was also made his duty to 
lay out the district, or those portions of it in which 
Indian titles had been extinguished, into counties 
and townships, but this provision was subject to 
future legislative changes. As soon as the Terri- 
tory contained five thousand free male inhabitants 
of full age, Representatives from the counties or 
townships were chosen to the General Assembly, 
one Representative for every five hundred free 
white males until the number of Representatives 
amounted to twenty- five, after which the appor- 
tionment was regulated by the Legislature. No 
person was eligible to the Assembly unless he had 
been a resident of the district three years, and a 
citizen of the United States for an equal time, 
and possessed two hundred acres of land in his 
own right. In order to be an elector of a Repre- 
sentative, every person was required to own fifty 
acres of land in his own right in the district, to 
have been a citizen of one of the States, and a 
resident of the district; or, having the requisite 
property qualification, to have had a two years' 
residence in the district. Members of the As- 
sembly were chosen for two years. In case of a 
vacancy by death or removal, the Governor issued 
a writ for a new election. 

The General Assembly consisted of the Governor, 
the Legislative Council, and the House of Repre- 
sentatives. The Council consisted of five members, 

146 



A Synopsis of Limitations 

chosen for a term of frve years, unless sooner re- 
moved by Congress. Three of the Council con- 
stituted a quorum. The manner of choosing a 
Council was a survival from colonial times. 
Every five years, as soon as the Representatives had 
met in regular session, it was their duty to nomi- 
nate ten persons, residents of the Territory, and 
possessed of a freehold estate in it of five hundred 
acres each, and return their names to Congress. 
From the ten thus nominated Congress chose and 
commissioned five to serve as Councillors. In case 
of a vacancy in the Council, the House nominated 
two persons, qualified as before, for each vacancy, 
returned their names to Congress, which appointed 
and commissioned one of the nominees for the re- 
mainder of the term. 

The powers of Governor, Council, and House 
were limited. The limit on the powers of the legis- 
lative, chief in importance, as time soon disclosed, 
was the celebrated sixth article forbidding slavery 
and providing for the return of fugitive slaves. 
But the five articles were also limitations in the 
nature of a bill of rights. The first secured relig- 
ious freedom. The second made secure the 
habeas corpus, proportionate representation, the 
course of the common law, the right to bail, the 
right to moderate fines and exemption from cruel 
and unusual punishments, the rights of property, 
and the inviolability of private contracts. The 
third article, which is justly entitled to as great 
fame as the sixth, made it obligatory upon the 
Legislature to maintain schools ; " religion, moral- 

147 



Constitutional History of the American People 

ity, and knowledge being necessary to good gov- 
ernment and the happiness of mankind" — a provi- 
sion echoing the sentiment of the educational 
clauses in the constitution of Massachusetts of 1 780, 
from which doubtless it was taken. The same 
article also made the observance of good faith 
towards the Indians obligatory. Their lands and 
property should never be taken from them without 
their consent ; their property rights and liberty 
should never be disturbed unless by just and law- 
ful wars authorized by Congress ; and in all their 
dealings with the Indians the whites should ob- 
serve justice and harmony. It is somewhat curious 
that one article should contain provisions, as was 
soon proved, so hopelessly discordant. The Terri- 
tory, and the States which might be formed in it, 
were forever to remain " a part of this Confederacy 
of the United States of America." Its inhabitants 
were to pay their portion of the federal debt. The 
Territorial Legislature, and the Legislatures of new 
States that might be created, could never interfere 
with the primary disposal of the soil by the United 
States. The lands and property of the United 
States were exempted from taxation, and in no 
case could non-resident proprietors be taxed high- 
er than resident — a provision destined to be adopted 
in later years in every State constitution west of 
Pennsylvania. The navigable rivers of the Terri- 
tory were declared to be common highways, for- 
ever free to all citizens of the United States. The 
entire territory northwest of the river Ohio, by the 
fifth article, was ultimately to be formed into not 

148 



Provisions for the Admission of States 

fewer than three nor more than five States. Their 
boundaries were defined by the article, a provision 
of slight importance, as they were alterable by Con- 
gress. Five new States might be formed out of 
the Territory, and be admitted to the Union when- 
ever Congress might decide that they had suffi- 
cient population. They should be admitted on an 
equal footing with the original States and form 
permanent constitutions and State governments. 
One condition only was prescribed — that the con- 
stitution and government should be republican in 
form and in conformity with the principles of the 
Ordinance, meaning especially the celebrated sixth 
article on slavery. If Congress deemed it expedi- 
ent, a State might be admitted with less than the 
prescribed population. In the following year, on 
August 7th, the Assembly of Virginia formally 
ratified the Ordinance as a " compact between the 
original States and the people and States in the 
territory northwest of the Ohio River." 

The territory of the United States south of the 
river Ohio was organized on the 26th of May, 1790, 
as one district, for the purpose of temporary govern- 
ment. The act conferred upon the inhabitants 
all the privileges and benefits set forth in the 
Ordinance of 1787 for the government of the 
territory northwest of the river. There was, how- 
ever, one exception, of far-reaching importance, 
expressed in the act of Congress of the 2d of 
April, by which Congress had accepted the ces- 
sion of the claims of the State of North Carolina 
to the district known as Tennessee. The act of 

149 



Constitutional History of the American People 

acceptance contained ten conditions, of which the 
most important provided that the laws in force 
and in use in the State of North Carolina at the 
time Congress accepted the cession should con- 
tinue in force within the Southwest Territory until 
repealed or otherwise altered by the legislative 
authority of the new Territory. As North Caro- 
lina was a slave State, and as slavery had already 
extended into the Southwest Territory, by this con- 
dition .slavery was forever practically established 
there. At least, that portion of the Ordinance of 
1787 by which slavery was prohibited in the 
Northwest Territory could never apply to the 
territory southwest of Ohio as long as the Legis- 
latures of the Southwest Territory chose to enact 
slave laws. This condition, limiting the power of 
Congress and making it dependent upon the will 
of a Territorial Legislature, or its successors — the 
Legislatures of Kentucky and Tennessee — was the 
first of its kind in our constitutional history. It 
made the Ohio River the permanent boundary line 
between free and slave soil, and was a limitation 
which, during the next sixty years, was continually 
returning to vex Congress. It was a condition 
which has largely escaped the notice of historical 
writers. Writers and speakers have often de- 
scribed the Northwest Territory as having been 
made permanently free soil by the Ordinance of 
1787, and the Southwest Territory slave soil by 
the Ordinance of 1790, omitting to explain that 
slavery was established by Congress in the South- 
west Territory as a condition dependent upon the 

*5° 



A Compromise on Slavery 

will of its local legislative authority. Slavery 
southwest of the river Ohio was a victory over 
national sovereignty, and the result of surrender 
of the powers of Congress to a Territorial Legis- 
lature. However, its establishment was considered 
just and equable. The States which had ceded 
the Southwest Territory were slave-holding States; 
those which ceded the Northwest Territory, except 
Virginia, were free soil. By excluding slavery 
from the Northwest and permitting it in the 
Southwest, it was supposed that all political and 
ethical equities would be realized, and that the 
progress of the country would be harmonious, if 
not homogeneous. 

In order to adapt the Ordinance of 1787 to the 
Constitution of the United States, the first Con- 
gress at its first session re-enacted and modified it 
by providing that the Governor and all the other 
officers of the Territory hitherto appointed by Con- 
gress should be nominated by the President and 
appointed with consent of the Senate. This act 
was further modified on the 8th of May, 1792, au- 
thorizing the Governor and judges of the Terri- 
tory northwest and in that southwest of the river 
Ohio to repeal any laws which they had made. 
The Secretary of State was instructed to provide 
proper seals for all the public offices in the two 
Territories, and any supreme or superior court 
judge in them was authorized to hold court in the 
absence of the other judges. Before the spring 
of 1800 population had flowed into the North- 
west Territory so as to make its subdivision into 

15 1 



Constitutional History of the American People 

separate governments desirable ; and on the 7th of 
May Congress provided that after the 4th of July 
of that year that part of the Northwest Territory 
lying to the westward of a line beginning on the 
Ohio opposite the mouth of the Kentucky River, 
and a line thence to Fort Recovery, and thence 
north until it intersected the boundary line between 
the United States and Canada, should constitute 
the Territory of Indiana. Its civil government 
was organized under the Ordinance of 1787. As 
soon as its Governor should receive satisfactory 
evidence that it was the wish of the majority of 
the freeholders to elect an Assembly, although 
there might not be five thousand free male in- 
habitants of full age in the Territory, an Assembly 
should be chosen. Until that number should be 
attained, the number of Representatives to the 
Territorial Assembly should not be fewer than 
seven or more than nine, and be proportioned by 
the Governor according to the number of free 
males of the age of twenty -one years and more 
which the counties might respectively contain. 
Chillicothe was made the capital of the Territory 
northwest of the river Ohio, and St. Vincents of 
the Indiana Territory. 

On the 4th of March, 1791, Vermont was re- 
ceived into the Union " as a new and entire mem- 
ber of the United States of America," the first 
addition to the original thirteen. Kentucky was 
admitted on the first day of June, 1792, and Ten- 
nessee just four years later. 

On the 7th of April, 1798, the fifth Congress, 

152 



Struggle for the Mississippi Territory 

at its second session, provided for the establish- 
ment of a government in the Mississippi Territory, 
and also for the amicable settlement of the limits 
of the State of Georgia. The domain between 
the Mississippi River and the western boundary 
of Georgia, as it exists to-day, was claimed by that 
State. Perhaps no other part of the country had 
been claimed by so many nations and common- 
wealths. By the act of the 7th of April, Congress 
inaugurated a peaceful settlement of the dispute by 
empowering the President to appoint three com- 
missioners to meet those appointed by Georgia 
for the purpose of determining the claims of the 
United States and of Georgia to the territory 
lying west of the river Chattahooche, north of the 
thirty-first degree of north latitude — the old boun- 
dary between the United States and West Florida 
determined by the treaty of 1783 with Great Brit- 
ain — and south of Tennessee. The area bounded 
on the west by the Mississippi, on the north by a 
line to be drawn due east from the mouth of the 
river Chattahooche, on the east by that river, and 
on the south by the thirty -first degree of north 
latitude, was organized into one district and called 
the Mississippi Territory. Over this district the 
President was authorized to establish a govern- 
ment in all respects similar to that northwest of 
the Ohio, excepting the article respecting slavery, 
and he was further authorized to appoint all nec- 
essary officers for the new Territory. At the dis- 
cretion of Congress it might later be divided into 
two districts, with separate governments. The 

153 



1 



Constitutional History of the American People 

establishment of this new government in no wise 
impaired the right of the State of Georgia, or of 
any citizen therein, to the jurisdiction of the soil 
of Mississippi Territory. All rights and privileges 
granted to the people of the territory of the 
United States northwest of the river Ohio by the 
Ordinance of 1787 were to be fully possessed 
and enjoyed by the people of Mississippi. As 
soon as the new Territorial government was estab- 
lished no person could bring any slave into Mis- 
sissippi from any place without the limits of the 
United States; every person convicted of the 
offence was required to forfeit for each slave so 
imported the sum of three hundred dollars, of 
which one- half was to go to the United States, 
and the other to the informer. Every slave 
brought in should receive his freedom. A sup- 
plemental act was passed on the 10th of May, 
1800, by which so much of the Ordinance of 1787 
and of the act of 1 789 providing for the govern- 
ment of the territory northwest of the river Ohio 
as related to the organization of the General As- 
sembly and prescribed its powers took effect in 
Mississippi, but until the number of its free male 
inhabitants of full age amounted to more than five 
thousand not more than nine Representatives 
were returned to its General Assembly. By this 
act provision was first made for the apportion- 
ment of representation in the Territory and for 
the election of a General Assembly. Provision 
was also made for the settlement of the disputed 
boundary between Georgia and the United States 

154 



Extension of Territory by Exploration 

before the fourth day of March, 1803. These 
organic acts somewhat changed the map of the 
United States, but the changes affected only Terri- 
torial and commonwealth boundaries. 

Meanwhile an important discovery had extend- 
ed our national domain. On the 29th of April, 
1792, Robert Grey, captain of the ship Columbia, 
which had left Boston on the 30th of September 
five years before, entered the mouth of the great 
river which drains the Oregon country, and which 
now is known by the name of his ship. For nine 
days he explored it, and thus established the claim 
of the people of the United States to the vast area 
drained by the Columbia and its tributaries. The 
country formed no part of the area claimed by 
France or Spain, for it constituted an entirely dis- 
tinct basin, bounded on the French and Spanish 
sides by highlands, and drained by rivers hitherto 
unknown to Europeans. The law of discovery, 
which gave to France, England, and Spain their 
possessions in the New World, gave the Oregon 
country to the United States. Nearly a century 
after its discovery it became three common- 
wealths. 

The analogy between these Territorial acts and 
the constitutions of the eighteenth century is ob- 
vious. Qualifications for electors and office-hold- 
ers like those in the States were re-enacted. Ex- 
cept the religious qualification, all the old ones 
were retained in kind, and, nearly, in degree. 
Future Western States were thus laid, for a time 
at least, on Eastern foundations. As yet there was 

155 



1 



Constitutional History of the American People 

slight suggestion of the triumphant democracy. 
The Ordinance of 1787 had the qualities of a con- 
stitution in its bill of rights and its provisions for 
the three departments of government. Its anti- 
slavery clause was destined to affect every new 
commonwealth, and, after seventy-eight years' trial, 
to become a part of the national Constitution — hav- 
ing first become part of seventeen State constitu- 
tions. Before the century closed, the national do- 
main was nearly equally divided between States 
and Territories. As it is a principle in law that 
everything capable of ownership must have an 
owner, so is it in politics that every region capable 
of government must be subject to civil authority. 
To this last the Indian lands were an exception. 
The tribes were treated as hostile nations. They 
were close neighbors to the settlements. The 
frontier was not more than fifty miles from the 
Ohio, in the Northwest Territory, and about the 
same distance from the Savannah in the south. 
Kentucky, with Tennessee, was an oasis of civili- 
zation in a desert of savagery. The settlements 
in the Cumberland Valley comprised Tennessee. 
Fear of the Indians still kept the whites penned 
between the Atlantic and the Appalachian high- 
lands. Pontiac had conspired to accomplish what 
the French had failed to do. Not until Wayne's 
victory and the treaty at Fort Greenville, in 1795, 
did Indian hostilities cease in the Northwest Ter- 
ritory and immigration to the West begin. With- 
in seven years from the close of his terrifying 
campaign, the population west of Pennsylvania 

156 



The Indians Bar Migrating Settlers 

was sufficient to organize the State of Ohio and 
the Territory of Indiana. But no similar cam- 
paign was undertaken against the even fiercer 
tribes in the Southwest, and for nearly twenty 
years longer they served as an impassable barrier 
to immigration. The effect was to turn the tides 
of population northwestward and to carry into 
Ohio and Indiana hundreds of families who other- 
wise would have settled in Mississippi. But pop- 
ulation always moves in the line of least resist- 
ance. Into the Western country the Ohio River 
was the natural highway. It ran out of New 
York, Pennsylvania, and Maryland, and lapped 
their population. Had it not been for the Choc- 
taws and Cherokees, the migrating spirits of Ken- 
tucky would have turned southward. The south- 
ern part of Indiana Territory was quickly taken 
up by settlers from Virginia and Kentucky. Into 
northern Ohio poured the overflow from New 
England, New York, and Pennsylvania; the western 
reserve was New Connecticut. Thus North and 
South met for the first time in Ohio and In- 
diana. Thirty years after Wayne's victory, when 
Ohio had a population of six hundred thousand 
souls, its General Assembly disclosed, in the nativ- 
ity of its members, the composite character of the 
State. Of a hundred members, only one was a 
native of Ohio. 

Before the century closed three lines of migra- 
tion extended along the wilderness roads into the 
West. The northern began at Albany and ex- 
tended to Detroit along the forty -third parallel. 

i57 



Constitutional History of the American People 

From Albany to Black Rock it was a wagon-road. 
There it divided. Some immigrants went by boat, 
others by wagon, to the Ohio country. Gradual- 
ly a permanent population was established along 
this route, constituting a peninsula of civilization 
extending from New England to the head of Lake 
Erie. The central line was older. It began at 
Philadelphia and reached to Pittsburgh and the 
Ohio River. It was the artery that fed central 
Ohio with some of the best blood of New Jersey, 
Pennsylvania, and Maryland. The southern line 
was the Virginian, which turned by many divisions 
through the valleys into the Southwest and across 
the mountains into Kentucky and Tennessee. 
Over it passed many settlers from the Carolinas. 
In after times the New York and Pennsylvania 
routes became transcontinental, and to-day com- 
prise two vast railroad systems which, with their 
connections, make the people of all the common- 
wealths neighbors. The Virginia route has devel- 
oped into the transportation system of the South 
Atlantic seaboard, with connections in the Gulf 
States and westward to California. The beginnings 
of these three systems date from the early move- 
ments of population into the West and Southwest.* 
As the century drew to a close it was found 
that a vast wave of population had overspread 
the settled area, moving the frontier westward 
forty -one miles. Isolated settlements were made 

* The railroads do not coincide with the early wilderness roads ; 
these led across streams and over mountains ; the railroads run in 
the valleys, and follow the banks of rivers. 

158 



The Growth of Cities 

fully fourteen hundred miles from the Atlantic — 
at Prairie du Chien, St. Louis, and Natchez, on 
the Spanish frontier. In twenty-five years popula- 
tion had so increased that, evenly distributed over 
the country, there would have been seventeen 
persons to the square mile. Syracuse, Roches- 
ter, Buffalo, Cleveland, Pittsburgh, and Cincinnati 
were only hamlets. Nine cities could boast, each, 
more than eight thousand people. Of these 
Charleston had eighteen thousand; Boston, twenty- 
five; Baltimore, twenty -six; Philadelphia, forty; 
and New York, sixty. The commonwealths were 
agricultural, and twenty-nine people in thirty lived 
in the country. For this reason the constitutions 
made slight provision for local government. Four 
of the large cities caused difficulties in the appor- 
tionment of representation, and were the subject 
of special constitutional provisions.* Otherwise 
the States were governed as rural communities. 
America had not yet entered the manufacturing 
age. Public interests were homogeneous, and, 
largely for this reason, few limitations were placed 
on the powers of the Legislatures. As yet the 
population was chiefly native-born. About one- 
fifth of it was slave, almost wholly in Southern 
States. Forming so large a proportion, one might 

* Constitutions of Maryland, 1776, Art. vi., and Amendment 
of 1799; 1851, iii., Sees. 2, 3. Of South Carolina, 1776, xi. ; 1778, 
xii., xiii., xxiv. ; 1790, i., Sees. 3, 7, and Amendment of 1808. Of 
Pennsylvania, 1776, Sec. 19; 1790, i., Sees. 4, 5, 7 ; Amendment of 
1857, i., Sees. 2,4. Of New York, 1777, iv., vii., xii. ; Amendment 
of 1801, iii., iv. ; of 1821, i., Sec. 4, and Amendment of 1833 ; 1846, 
iii., Sees. 3, 5 ; vi., Sec. 14 ; x. ; of 1894, iii., Sees. 4, 5. 

159 



Constitutional History of the American People 

expect to find slavery a larger element in the con- 
stitutions of the South, With the exception of 
the provisions in two States * requiring merciful 
treatment of slaves and regulating their emanci- 
pation, the laws and constitutions of the common- 
wealths, North and South, were almost alike in 
excluding them from the basis of apportionment, 
and also in excluding free negroes from the fran- 
chise. 

Looking backward, we detect little in the civil 
institutions of the commonwealths then that pre- 
saged the America of our own times. Individual- 
ism dominated the life of the people. Democracy 
was yet many years in the future. The masses 
were controlled by a small party of men, leaders in 
opinion. Savagery lay close to civilization. There 
were not a hundred men of great wealth in the 
country. Yet life was clean, robust, and, for most 
of the population, comfortable by their standard, 
but meagre, narrow, and colorless by ours. The 
State was not yet conceived as having those func- 
tions which are now commonly called " duties." 
The constitutions of the eighteenth century lack- 
ed the features which distinguish those of to-day. 
Fundamental to them all was the idea that the 
basis of government is property.! 

* Kentucky, 1792, ix. ; 1799, vii. ; Georgia, 1798, iv., Sec. 2. 

t The most complete record of the debate on the " Basis of 
Government — Property or Persons?" is found in the Journal of 
Debates and Proceedings in the Convention of Delegates Chosen 
to Revise the Constitution of Massachusetts, Begun and Holden 
at Boston, November 15, 1820, and Continued by Adjournment 
to January 9, 1821. Reported for the Boston Daily Advertiser, 

160 



Early Constitutional Basis of Government 

Boston, 1 821, 8vo, 292 pp. Among the delegates were Daniel 
Webster, Joseph Story, Levi Lincoln, ex-President John Adams, 
Josiah Quincy, and Joseph B. Varnum. See Webster's speech on 
the subject, a week later, December 1 5, repeated and elaborated in 
his " Plymouth Oration." 

Proceedings and Debates of the Virginia State Convention 
of 1829-30. Richmond, 1830, 8vo, 919 pp. See, especially, the 
speeches of Madison and Monroe in re " Property the Basis of 
Government." Among the delegates were John Marshall, Philip 
P. Barbour, Abel P. Upshur, Governor William B. Giles, William 
P. Taylor. 



CHAPTER VI 
THE FIRST STRUGGLE FOR SOVEREIGNTY 

No American constitution has defined sover- 
eignty. Intentionally or not, the idea has been 
left to develop through administration. Through- 
out colonial times there raged a struggle between 
Assemblies and royal Governors, precipitated 
chiefly by the independence of the Governors and 
the obligation imposed on the Assemblies to 
grant them supplies. Before a pacific compro- 
mise was worked out, American independence 
made the legislative and the executive alike re- 
sponsible to the electorate. For a time, while the 
colonies were inchoate States, the executive was 
almost in abeyance. The Assemblies took the 
initiative and organized new governments. Thus 
it came to pass that most of the early constitu- 
tions were the work of Legislatures. Jt has already 
been pointed out that in these new governments 
the function of the executive was military rather 
than civil. The legislative, the Lower House in 
particular, was the depositary of authority. The 
States began with a weak executive. 

Meanwhile another Legislature, and ultimately 
another executive, were exercising a quasi-conti- 
nental authority. New-born enthusiasm called the 

162 



Efforts to Formulate the Union 

Congress of the Confederation into being, and for 
about eight years supported it. Its members were 
delegates from the States, chosen by their Legisla- 
tures, and responsible to them only. They were i 
subject to recall, and were paid by vote of the 
Legislatures, if paid at all. From the relation 
thus established sprang the idea that the Conti- 
nental Congress was the agent of the States. For 
a time it exercised authority as if it were original; 
and, under the pressure of war, was sustained by 
public opinion. But as the struggle became a 
drain on the resources of the people, it was less 
enthusiastically supported. Congress had no popu- 
lar constituency. It was the creature of the States. 
The sentiment of union which had flickered for 
more than a century and a quarter burned for a 
time with brighter light when the colonies de- 
cided to declare their independence. 

On the day when the committee was appointed 
to prepare a Declaration of Independence, another 
was named to report Articles of Confederation. 
In twenty- three days the first committee com- 
pleted its work. It was unanimously adopted 
and given to the world. On the 8th of July the 
second committee reported a plan of union; it 
was destined to a different reception and a far 
different fate. For a year Congress discussed it, 
in desultory fashion, and then sent it to the Legis- 
latures, before whom it dragged along, under more 
or less hostile discussion, for nearly five years. 
It was not adopted by the requisite number of 
States until the ist of March, 1781. The Decla- 

163 



Constitutional History of the American Teople 

ration defined the States as free and independent ; 
the Articles of Confederation declared that each 
State retained its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right 
not expressly delegated by the Confederation to 
the United States in Congress assembled. The 
new government had no popular constituency. It 
represented States. Meantime the power of the 
Assemblies had not lessened. They rested on in- 
dustrial foundations, they could levy taxes, they 
could compel the execution of their own laws. 
Thus established, the States prospered, but the 
Confederation fell into decay. While the Articles 
were on the circuit, some States were making their 
first constitutions ; and when finally the Articles 
were adopted, Massachusetts, the last State to 
adopt a constitution, was assembled in convention 
for the purpose. Thus it happened that one 
clause in the Articles was copied, with slight 
verbal change, into the Massachusetts constitu- 
tion of 1780, declaring the State "free, sovereign, 
and independent," and that it could exercise every 
power not expressly delegated to the United 
States. The next constitution to be adopted was 
in New Hampshire, in 1784, and it copied the 
clause from the Articles, just as Massachusetts 
had done. Eight years later it was repeated in 
the second New Hampshire constitution. 

But the word sovereign had been applied by a 
State before the Articles were written. On the 
10th of October, 1776, the Connecticut Assembly, 
by a legislative act, declared the State " free, sov- 

164 



State Sovereignty in the Constitutions 

ereign, and independent." This act may be said 
to be the parent of the idea of State sovereignty. 
Save by these three New England commonwealths, 
the word sovereign was not used in a State consti- 
tution of the eighteenth century. When Connecti- 
cut adopted a constitution in 1818, the word sov- 
ereign was not used, nor was State sovereignty 
claimed. New Hampshire dropped the word and 
the idea from its constitution in 1876. The Massa- 
chusetts provision has never been modified, and is 
probably the only portion of the Articles of Con- 
federation that survives in a State constitution, 
Two years after the adoption of the Articles, on the 
3d of September, the treaty of peace was signed. 
It mentioned the thirteen States severally by name, 
called them the United States, and declared that 
the King treated with them as free, sovereign, and 
independent States. 

Reluctantly, and after necessity forbade longer 
delay, the Legislatures of twelve States elected 
delegates to the federal convention. Its proceed- 
ings were unknown except to its members, and 
these were pledged to secrecy. Distrust of democ- 
racy defeated every effort in the convention to 
have its work submitted to popular vote. There 
was even greater distrust of the Legislatures. To 
insure the Constitution fair treatment, it was re- 
ferred to special conventions chosen by the elec- 
tors. The word sovereign does not occur in it, 
but the idea is conveyed in those general affirm- 
ative passages vesting supreme legislative, execu- 
tive, and judicial authority. The question of sov- 

165 



Constitutional History of the American People 

ereignty was discussed in the convention, though 
not at great length. Randolph, in opening the 
business before it, spoke of the jealousy of the 
States with regard to their sovereignty.* It may 
be inferred, therefore, that the claim of the three 
New England States to sovereignty was unwrit- 
ten law in all the other commonwealths. At least, 
no State disclaimed sovereignty. Johnson, of 
Connecticut, described the Virginia plan, which 
Randolph proposed and which ultimately devel- 
oped into the Constitution, as one not destroying 
the individuality of the States, but charged with 
such a tendency. Paterson, the author of the 
New Jersey plan, which was a slight amendment 
of the old Articles, defended it because it would es- 
tablish a Confederation. " A Confederation," said 
he,t "supposes sovereignty in the members com- 
prising it, and sovereignty supposes equality ; if we 
are to be conceived as a nation, all State distinc- 
tions must be abolished." To this Wilson, of 
Pennsylvania, replied \ that a State could as little 
retain its sovereignty, on becoming a member of a 
federal government, as a man could retain his equal- 
ity on becoming a member of civil government. 
The current of opinion in the States was hinted 
at by Lansing, of New York, who assured the con- 
vention § that his State would never have consented 
to send deputies if it had supposed that the delib- 
erations were to turn on " a consolidation of the 
States and a national government," which he im- 

* Elliot, Vol. v., p. 127. t Id., p. 176. 

tld.,p. 177. %Id., p. 193. 

166 



Conflicting Opinions as to State Sovereignty 

puted to be the purpose of the Virginia plan. 
Hamilton, his colleague, admitted the sovereignty 
of the States, traced to it their power over the people, 
and expressed his opinion that they had shown a 
disposition to regain the powers they had delegated 
to the Confederation, rather than to part with more 
or to give effect to those already granted* John- 
son, referring to this speech, said,t a little later, 
that Hamilton, alone of the members of the con- 
vention, held these opinions. Hamilton elaborated 
his idea, in a prophecy, as it has proved, of the 
character of the national government in our day, 
saying that " a complete sovereignty should be giv- 
en to the general government such as will turn all 
the strong principles and passions of men on its 
side.":j: This led King, of Massachusetts, to say§ 
that the words federal, national, sovereignty, and 
States, had been used inaccurately in the discus- 
sions. The States were not sovereign in the sense 
contended for by some. They did not possess the 
peculiar features of sovereignty; they could not 
make war, nor peace, nor alliances, nor treaties. 
A union of the States was a union of the men 
composing them, whence a national character re- 
sulted to the whole. Congress could act alone 
without the States, and its acts would be binding 
against the instructions of the States. No acts 
of the States could vary the situation or prevent 
the judicial consequences. If the States, there- 
fore, retained some portion of their sovereignty, 

* Elliot, Vol. v., p. 200. t Id., p. 220. 

\ Id., p. 201. § Id., p. 212. 

167 



Constitutional History of the American People 

they had certainly divested themselves of essen- 
tial portions of it. If they formed a confederacy 
in some respects, they formed a nation in others. 
Martin, of Maryland, would not agree to any dim- 
inution of the equal sovereignty of the States, and 
insisted that the general government to be formed 
should be only to preserve the State governments, 
not to govern individuals.* He insisted that " the 
language of the States being sovereign and inde- 
pendent was once familiar and understood, though 
it seemed suddenly to have become strange and 
obscure."! This was said after Elbridge Gerry, 
of Massachusetts, had asserted that the States 
had never been independent, and never could be, 
on the principles of the Confederation. " The 
States, and the advocates for them," said he, " are 
intoxicated with the idea of their sovereignty."! 
Twenty-five years later, when Gerry was elected 
Vice-President with Madison — another triumph 
for " the good old republican doctrine of 98," the 
doctrine of the celebrated " Virginia Resolutions " 
of that year and of " Madison's Report " of '99 
— he himself had drunk of that spirit which, in 
the convention, he said had intoxicated the States. 
Mutatis mutandis — Gerry was not alone. 

Ellsworth, of Connecticut, wished to maintain the 
existence and agency of the States, and to ingraft 
the general government upon them \\ and his idea 
prevailed, not so much by express provision of the 
Constitution as by its actual working as a political 

* Elliot, Vol. v., p. 249. t Id., p. 259. 

\ Id., p. 240. 

168 



Restricted Electorate in the Early Democracy 

mechanism — as in its method of choosing the 
President, by electors chosen by the States ; in 
that of choosing Senators, and of apportioning Rep- 
resentatives by States. " The equal vote in each 
State," wrote Hamilton in The Federalist* " is at 
once a constitutional recognition of the portion 
of sovereignty remaining in the individual States 
and an instrument for preserving that residuary 
sovereignty " ; and with the understanding that 
the residuary sovereignty of the States was unim- 
paired, the Constitution was ratified by a narrow 
majority. 

Popular sentiment in the rural districts and 
along the frontier was strong against the plan ; in 
the small towns it was divided ; in the commercial 
centres it was favorable. With only one hundred ) 
and fifty thousand voters out of a population of 
three millions and a half, the country presented 
the anomalous spectacle of a democracy in which 
the disqualified were in the majority, and formed 
the tumultuous mass along the edge of the elec- 
torate, with feelings hostile to restrictions on in- 
dividual liberty, or to any form of government, 
especially a new one, that was likely to multiply 
taxes. The right to vote was exclusively in con- 
trol of the States. During the twelve years since 
the Declaration of Independence there had been a 
slight extension of the franchise here and there, 
chiefly by act of Assembly. Whatever reforms 



* No. lxii. See also Mason's remarks in the convention. Elliot, 
Vol. v., p. 415. 

169 



Constitutional History of the American People 

were desired in social or commercial conditions, 
long habit pointed to the Assemblies as the source 
of the authority, and as the paramount democ- 
racy that could grant them. What, it was asked, 
is the new government but the agent of the States ? 
Scarcely was it inaugurated before the old strug- 
gle broke out along new lines. The hated ex- 
ecutive of colonial times was now become the 
United States government — new, untried, its pow- 
ers undefined. The Assemblies which opposed it of 
old were now the States — ancient as the Virginia 
House of Burgesses, experienced, organized, their 
powers unlimited by constitutions or laws. This 
all meant a political opportunity, and it was quick- 
ly improved. 

During the winter of 1797, Jefferson, then com- 
pleting his first year in the Vice-Presidency, was 
lodging at Francis's Hotel, long famed as the 
Indian Queen, on Fourth Street, Philadelphia. 
Hither, after the inaugural ceremonies in the State 
House, Washington and a throng of people had 
accompanied Adams and Jefferson. Standing on 
the steps of this hotel, and struggling in vain to 
control his feelings, Washington bade farewell to 
the people he had served so long and so faithfully. 
The hotel was the headquarters of politicians, and 
was much affected by Jefferson's friends. Many 
chapters of the political history of the country for 
the next half- century were here planned. The 
substance of many conversations is recorded in a 
letter by Jefferson of the 12th of February, 1798, 
to John Wise, a Presidential Elector from Virginia 

170 



Jefferson and the Tory Party 

in 1793. In a letter to Jefferson, fifteen days be- 
fore, Wise complained that, as he had lately learn- 
ed, Jefferson had spoken of him " as of Tory poli- 
tics," and he inquired " as to the fact and the idea 
to be conveyed." Jefferson, " with frankness," 
wrote a full reply, which may be accepted as one 
of the earliest authoritative descriptions of political 
parties under the Constitution. " It is now under- 
stood," so runs this letter,* " that two political sects 
have arisen within the United States — the one 
believing that the executive is the branch of our 
government which more needs support ; the other, 
that, like the analogous branch in the English gov- 
ernment, it is already too strong for the republican 
parts of the Constitution; and therefore, in equiv- 
ocal cases, they incline to the legislative powers : 
the former of these are called Federalists, sometimes 
Aristocrats or Monocrats, and sometimes Tories, 
after the corresponding sect in the English govern- 
ment of exactly the same definition : the latter are 
styled Republicans, Whigs, Jacobins, Anarchists, 
Disorganizers, etc. ; these terms are in familiar use 
with most persons, and which of those of the first 
class I used on the occasion alluded to I do not 
particularly remember ; they are all well understood 
to persons who are for strengthening the execu- 
tive rather than the legislative branches of our 
government ; but probably I used the last of these 
terms, and for these reasons : both parties claim to 
be Federalists and Republicans, and I believe, in 

* Manuscript letter. 
171 



Constitutional History of the American People 

truth, as to the great mass of them, these appella- 
tions designate neither exclusively, and all others 
are slanders, except those of Whig and Tory, which 
alone characterize the distinguishing principles of 
the two sects as I have before explained them, as 
they have been known and named in England for 
more than a century, and as they are growing into 
daily use here." This reads as if party principles 
were already well understood, and party organiza- 
tion well under way. But Jefferson was looking 
into the future. Party material was abundant. It 
needed shaping into coherence and efficiency. All 
was not raw material, because Jefferson had been 
at work upon it since the day he entered Wash- 
ington's cabinet, eight years before. Every impor- 
tant act of Washington's administration, Jeffer- 
son believed, consolidated authority in the federal 
government, or, as he expressed it in his letter, 
strengthened the executive at the expense of the 
legislative — that is, the nation at the expense of 
the States. For the nation stood the Federalists 
— the Tories ; for the States the Republicans — 
Disorganizers, or, as they soon came to be called, 
Democrats. It was the national party against the 
State party. With their contests the administra- 
tion of the new Constitution began. The instru- 
ment was now to be interpreted. When Jefferson 
wrote this letter the new government was enter- 
ing its second decade. At its inception public 
opinion had not rallied enthusiastically about it, 
and Washington had found difficulty in inducing 
proper men to accept office. Had he refused the 

172 



Expanding the Principle of English Liberty 

Presidency, the national government might have 
failed for lack of men. 

It is difficult for us to-day to understand how 
feebly the sense of national responsibility and ob- 
ligation rested on the people of the country at 
the close of the eighteenth century. Indepen- 
dence had not been won, so thought the masses, in 
order to establish a costly, a powerful, a complex 
national government, but to secure to every per- 
son in the country his ancient and undoubted 
rights and liberties. Not satisfied with liberty, a 
few designing men, as Lansing had expressed it 
in the convention, and as many others had re- 
peated it in the ratifying conventions, had devised 
a consolidated government, dangerous alike to the 
States and to individuals. Were not the bills of 
rights and the State constitutions enough ? Cer- 
tainly they were older and of greater authority 
than this Constitution lately made in Philadelphia. 
Englishmen had long enjoyed the right of trial 
by jury, the right of petition, the right of habeas 
corpus, and the right of exemption from unusual 
fines and cruel punishments. America had added 
to the list the right of freedom of speech, free- 
dom of worship, freedom of the press, exemption 
from unwarranted searches and seizures, and the 
right of representation. 

Any legislation, or any exercise of authority by 
the national government that could be construed 
as violating one of these rights, would at once 
precipitate an opposition which, if well managed, 
could be organized as a political party. The pop- 

i73 



Constitutional History of the American People 

ular interpretation of the Declaration of Indepen- 
dence made it the authority for exaggerated ideas 
of personal liberty — tending to take the form of 
individualism gone mad. At the commercial cen- 
tres this idea was nursed in political attics, but in 
the rural districts and along the frontier it pos- 
sessed the streets. At the crest of the Allegha- 
nies the West was supposed to begin, but it lay as 
far East as Francis's Hotel. Central and Western 
Pennsylvania, Virginia and the Carolinas, Ohio, 
Kentucky, and Tennessee were the paradise of 
individualism. Law and order were in this vast 
region, but not the law and order known in Bos- 
ton, in New York, in Philadelphia, and in Charles- 
ton. This ingenious and picturesque individual- 
ism of the West was not crass ruffianism, for it 
possessed communities composed in large meas- 
ure of the younger sons of the best families of 
the older States. But in their passage into the 
Northwest the natives of New England, New 
York, Pennsylvania, Maryland, and Virginia suf- 
fered a political change such as came over the 
younger sons of Virginia and the Carolinas who 
had settled in Kentucky. Federalism was left 
behind. The conditions of Western life were not 
a favoring soil. There the State, not the nation, 
was the chief political thought. The government 
of the United States was far away. Had it not 
neglected the West ? More than this, had it not 
refused to let the West manage its own best in- 
terests ? Had it not interfered, with masterly in- 
competency, in the Indian affairs of the South- 

i74 



Antagonism Between the East and the West 

west, and left Tennessee unprotected against the 
most powerful and most brutal tribes east of the 
Mississippi? Matters were little better in the 
Northwest. There the government of the United 
States was commonly thought to be pursuing a 
policy which, if not changed, would ruin or es- 
trange the West. A frontiersman put Federal- 
ists and Indians in the same class. Others who 
had given more thought to the subject varied 
the comparison by substituting the federal policy 
for the Federalists, and contrasting it with that 
of the States — or what would be that of the 
States if not prevented by the federal govern- 
ment. By whatever path the comparison was ap- 
proached, it was sure to bring Western travellers 
to a point from which the federal government 
would be viewed as the aggressor. Opposition 
was concrete, as it were, in the West ; abstract 
in the East. A great field for political opera- 
tion was, therefore, awaiting ownership. Indians 
and excises raised the issue in the West. In 
the East, it was Jay's treaty and Citizen Genet; 
but, East and West, the masterpiece of federal of- 
fence was the Alien and Sedition laws. Opposi- 
tion to these proved the first political cement that 
held East and West together. 

When a new party is planned its projectors / 
immediately search for a foundation in legal de- j 
cisions and political precedents. Administrative 
blunders furnish campaign cries, but principles, 
and the interpretation of the Constitution by the 
courts, furnish arguments. Every party that has 

i75 



Constitutional History of the American People 

arisen in America has claimed a foundation in 
/some decision of the Supreme Court. 

While Jefferson and his political colleagues were 
organizing the new party, a case reached the 
court involving the obscure question of sovereign- 
ty. In 1793 one Alexander Chisholm, a citizen 
of South Carolina, brought suit against the State 
of Georgia.* John Jay, one of the authors of The 
Federalist, was Chief Justice. Wilson, Blair, and 
Paterson, lately members of the federal conven- 
tion, and James Iredell, foremost in defending the 
Constitution in the ratifying convention of North 
Carolina, were Associate Justices. Randolph, the 
reputed author of the Virginia plan, was Attorney- 
General of the United States. " I acknowledge," 
said he, in his argument to the court, " that the 
States are sovereignties"; but "the limitations 
which the federal government is admitted to im- 
pose upon their powers are diminutions of sover- 
eignty." Chisholm's case involved two questions: 
Could Georgia be sued, like an individual? Did 
the judicial power of the United States extend 
over the case ? 

Wilson, in an elaborate opinion, which Jay sup- 
plemented by another, gave the decision of the 
court. " As to the purposes of the Union," ran 
the decision, " Georgia is not a sovereign State." 
Like an individual, it could be sued, and the case 
fell properly within the judicial power of the 
United States. The Chief Justice, after giving 

* 2 Dallas, p. 419. 

176 



State Sovereignty in the Courts 

an elaborate review of the political history of the 
country from a time prior to the Revolution, con- 
cluded "that the sovereignty of the nation is in. 
the people of the nation, and the residuary sover- 
eignty of the State in the people of each State." 
From these opinions Iredell dissented. He, too, 
traced the history of the country from an early 
day. The States were successors to the Crown, 
and inherited whatever sovereignty it once pos- 
sessed in the country. Like the King, they could 
be petitioned, but not sued. After a careful anal- 
ysis of the principles of the common law, he 
concluded: " Every State in the Union, in every 
instance where its sovereignty has not been dele- 
gated to the United States, I consider to be as 
completely sovereign as the United States are 
in respect to the powers surrendered. The 
United States are sovereign as to all the powers of 
government actually surrendered; each State in the 
Union is sovereign as to all the powers reserved." 
Georgia could not be sued; the United States 
should dismiss the case for want of jurisdiction. 

Georgia accepted Iredell's as the opinion of the 
court. The Jeffersonians welcomed it as the true 
interpretation of the Constitution. On the day 
following the decision, Sedgwick, of Massachu- 
setts, in the House, moved a resolution preliminary 
to an amendment to the Constitution that should 
carry out Iredell's interpretation and protect the 
States. Congress took no immediate action, but the 
spirit of Sedgwick's resolution rapidly overspread 
the country. It was welcomed and encouraged by 
i. — m 177 



Constitutional History of the American People 

Jefferson and his friends. On the 5th of March, 
1794, Congress submitted the eleventh amend- 
ment to the States, and it was in course of ratifi- 
cation during the next four years. On the 8th of 
January, 1798, just thirty-four days before Jeffer- 
son wrote the letter to Wise defining political 
parties, President Adams announced the adoption 
of the amendment. The doctrine of residuary 
sovereignty was made secure. The States had 
won a most important victory at the very begin- 
ning of their struggle with the national govern- 
ment. Iredell's opinion became at once the con- 
stitutional corner-stone in the political structure 
which Jefferson and thousands of his countrymen 
were raising. The doctrine of State sovereignty 
from this time had constitutional standing, and 
derived additional force from its interpreter. Had 
not Iredell been the foremost Federalist in North 
Carolina and dictated terms to its ratifying con- 
vention ? Had he not been rewarded by an ap- 
pointment to the Supreme Court? But when a 
great constitutional question came before them 
he could not support high Federalism. He was 
an honorable man and a supporter of republican 
government. Refusing to follow Jay and Wilson 
in their abstractions, by sound legal reasoning he 
had dissented from them and had saved the com- 
monwealths. The State party was, therefore, the 
one true to republican principles. Let Federal- 
ists take warning. The liberties of the country 
would soon be in the hands of patriots. 

Though Washington's personal popularity suf- 

178 



Distrust of Adams s Administration 

fered little during his two terms as President, his 
administration was not popular with the country. 
The Alien and Sedition laws dissipated the little 
popularity with which Adams's administration be- 
gan. He and they had defenders, and among 
them were some of the ablest men in the country. 
But an unpopular law is rarely preserved by reason- 
ing and argument. The people in Adams's time 
were far more excitable, severe in criticism, and 
radical in character than they are to-day. Social 
efficiency, economic association, nearly all the amel- 
iorating influences which distinguish the life of the 
nation now were lacking then. Government in a 
democracy at the close of a war for independence 
is likely to be relatively feeble. Adams's whole 
policy was pilloried by the opposition as a monarch- 
ical attack on the liberties of the people. How- 
ever conservative and constructive as a national 
policy, it was construed as fatal to the rights of 
man. It, therefore, served to unite the discon- 
tented, those whom Jefferson styled the " Republi- 
cans, Whigs, Jacobins, Anarchists, Disorganizes." 
These awaited the skilled hand, the masterful 
policy of a genius for political organization; and 
then — farewell Adams and the Federalists. No 
one understood this radical, destructive, individu- 
alistic element better than Jefferson. He knew, 
probably better than Emerson did afterwards, that 
the State was once a private thought. On this 
axiom he organized a party destined to control 
American democracy for sixty years and to affect 
its course to the latest generation. 

179 



Constitutional History of the American People 

His plan was simple, effective, and popular. 
During the Revolution the organs of public opin- 
ion were partly old, partly new. The people had 
been familiar with town meetings, county meet- 
ings, and Assemblies for more than a century and 
a half. The Revolution brought forth the com- 
mittees of correspondence and public safety, the 
caucus and the convention. During the excite- 
ment over Jay's treaty and Citizen Genet the 
political mass -meeting came in vogue. Jeffer- 
son's method was cumulative. He began with in- 
dividuals, and, judging from the mass of his corre- 
spondence that remains (and he ranks among the 
world's voluminous letter-writers), his ideas reached 
every county in the Union and permeated many 
of them. He chose to follow the successful 
methods of the Revolution. A few were admit- 
ted into his fullest confidence. These he met at 
his lodgings in Philadelphia and at Monticello. 
Among them were Madison and Gallatin ; Levi 
Lincoln, of Massachusetts ; Nicholas and Breckin- 
ridge, of Kentucky; Robert Smith, of Maryland; 
and Gideon Granger, of Connecticut. But his 
lesser friendships ran into every city and town 
and among men of all occupations and profes- 
sions. Local committees were organized, politi- 
cal committees were summoned, and resolutions, 
carefully prepared beforehand, were adopted. A 
favorite time for meeting in the South was on 
court days at the county seats when the bar as- 
sembled ; the resolutions could be discussed and 
appropriately amended, and then be sent up to 

180 



The Tories Favor Centralisation of Power 

the Assemblies. These must be won at any cost. 
Ultimately all were won. The State Legislatures 
secure, Congress would be compelled to respond 
to State sentiment. Ultimately, would not the 
new party gain control of the federal government 
itself ? 

Jefferson's constructive, unifying method had 
been in operation some nine years when the Alien 
and Sedition acts brought public matters to a 
crisis.* Scarcely less odious to him were other 
federal measures — the stamp tax, the house tax, 
the naturalization law, the law increasing the 
number of federal courts, and the cost of the 
army and navy. Did not all these prove that 
the American Tories were of the hated British 
type, and were "bent on strengthening the exec- 
utive rather than the legislative branches of the 
government?" 

Congress was in session till the 16th of July, 
1798, and long before this time Jefferson and the 
few to whom he confided his most critical meas- 
ures had perfected a plan of campaign. As each 
federal measure passed, the alarm was sounded 
over the country, and local opposition was stirred. 
The Alien act, passed on the 25th of June, em- 
powered the President, at his discretion, to expel 
from the country any foreigner whom he judged 
"dangerous to the peace and safety of the United 
States," or whom he suspected to be " concerned 



* For the Alien acts, see Statutes at Large, Vol. i., pp. 566, 570, 
577 ; for the Sedition law, id., p. 596. 



Constitutional History of the American People 

in any treasonable or secret machinations against 
the government." Were not the alien enemies of 
the President and his party the alien friends of 
the opposition ? Who determined citizenship ? 
The States. What right had the President, then, 
to order citizens to leave the country? The law 
was a palpable violation of the rights of the States. 

This was followed, nineteen days later, by the 
Sedition act, which, the opposition at once said, 
was levelled against them and designed to per- 
petuate the power of the Federalists. If an 
American presumed to speak of either House or 
of the President in a way displeasing to some 
Federalist, he was liable to a suit for libel, to a 
fine of two thousand dollars, and to imprisonment 
for two years. Should he meet with his fellow- 
citizens to discuss public measures, he might be 
indicted for conspiracy against the government, 
be fined five thousand dollars, and be imprisoned 
five years. The truth might be given in evidence, 
the jury was judge of both law and fact, and the 
law was to cease on the 3d of March, 1801 ; but 
what did these matters signify save that the coun- 
try was fast settling towards monarchy? Certain- 
ly a free man had a right to tell what he thought 
of the government. When the States ratified the 
Constitution, had they not with one accord insisted 
on amendments, which were adopted, and of which 
the very first forbade Congress to pass any law 
abridging the freedom of speech or of the press ? 

The opposition felt that they were on firm 
ground — that the federal acts were clearly uncon- 



The Coming of Clay 

stitutional. Early in August signs of public sen- 
timent began to appear in the newspapers. In 
the Kentucky Gazette, George Nicholas, soon to 
deliver a great speech in Congress for the repeal 
of the Sedition law, now published his political 
creed and an opinion pronouncing the law uncon- 
stitutional. At this time he was professor of law 
in the Transylvania University, was known as the 
intimate friend of Jefferson, had an extensive law 
practice throughout the Southwest, and possessed 
more influence in Kentucky than the whole 
Federal party. Public meetings in Kentucky and 
Virginia formulated similar sentiments. Resolu- 
tions, carefully planned, if not carefully drawn, 
were sent up to the Legislatures in such number 
as to appear to be the spontaneous and unanimous 
sentiment of the people of the two States. In 
both, copies of expostulatory resolutions, drawn 
from a high source, had been carefully distributed. 
Faithful hands had copied them. Safely packed, 
with other briefs, in the saddle-bags of trusted 
partisans, they found their way over the circuits 
and were brought home to every constituency. 

In Kentucky none were more influential or 
more active than John Breckinridge and George 
Nicholas. A young Virginian, Henry Clay, fresh 
from the law office of Chancellor Wythe, began a 
political career, lasting over a half century, in a 
speech at Lexington denouncing the unpopular 
acts. On the 7th of November, Breckinridge pre- 
sented a set of resolutions to the Kentucky Legis- 
lature condemning the acts. The Governor was 

183 



Constitutional History of the American People ■ 

outspoken in their favor, and, on the 16th, after 
a week's debate — which consisted of a series of 
professions of political faith on the part of the 
members rather than an argument against the 
acts, the resolutions passed. # Jefferson was the 
author of these resolutions. 

In Virginia a similar set, written by Madison, 
at Jefferson's request, was presented to the Legis- 
lature by John Taylor on the 13th of December, 
and adopted eleven days later.t Verbal, and 
some have claimed doctrinal, differences distin- 
guish these two manifestoes, known as the Ken- 
tucky and Virginia resolutions of '98. Whatever 
differences may have been found in them at a 
later day, they were originally intended to form a 
unit of political propagandism, and in that sense 
were the appeal of a new party to the States as 
sovereignties. 

The character of the resolutions is easily under- 
stood. Those of Virginia declared that its As- 
sembly viewed the powers of the federal govern- 
ment, as resulting from the compact to which the 
States were parties, as limited by the plain sense 
and intention of the Constitution, as no further 
valid than authorized by the grants enumerated in 
the compact; and that in case of a deliberate, palpa- 
ble, and dangerous exercise of powers not granted, 
the States, who were the parties to the compact, 
had the right and were in duty bound " to interpose 
for arresting the progress of the evil." The Assem- 

* Elliot, Vol. iv., p. 540. f Id., p. 528. 

184 



Federal Sovereignty Attacked 

bly complained that the federal government mani- 
fested a spirit " to enlarge its powers by forced 
constructions of the constitutional charter which 
defines them," " so as to consolidate the States 
by degrees into one sovereignty, the obvious ten- 
dency and inevitable consequence of which would 
be to transform the republican system of the Unit- 
ed States into an absolute, or at best a mixed, mon- 
archy." The Kentucky resolutions of '98 set forth 
the same doctrine of compact and of limited pow- 
ers of the federal government, and entered at length 
into a proof of the unconstitutionality of the Alien 
and Sedition acts as violating the express provi- 
sions of the constitutions and bills of rights. " The 
acts, unconstitutional and obnoxious," should be at 
once repealed. In the second Kentucky resolu- 
tions,* also written by Jefferson and concurred in 
the 2 2d of November, 1799, the doctrine was 
more clearly stated : " The States that formed 
the Constitution, being sovereign and indepen- 
dent, have the unquestionable right to judge of its 
infraction," and " a nullification by those sover- 
eignties of all unauthorized acts done under color 
of that instrument is the rightful remedy." In 
brief, the Kentucky and Virginia resolutions de- 
nied sovereignty to the federal government and 
claimed it for the commonwealths. From this 
claim of State sovereignty came the claim of right 
to nullify federal laws, and, ultimately, to secede 
from the Union. The idea of State sovereignty 

* Preston's Documents, p. 295. 

185 



Constitutional History of the American People 

was now fairly launched. The Virginia resolu- 
tions, like those of Kentucky, pronounced the ob- 
noxious laws unconstitutional. But Madison em- 
phasized the rights of the States. His resolutions 
were a protest against consolidating them by de- 
grees into one sovereignty. The federal Consti- 
tution was a compact expressly defining and limit- 
ing the powers of the general government. The 
States must decide whether it had been violated 
at any time. Accompanying the resolutions there 
went an address to the people as the guardians of 
State sovereignty. Copies of the resolutions were 
sent to the executives of the other States, to be 
submitted to their Legislatures. 

By the ist of November seven States had for- 
mally replied.* Some defended the Alien and Sedi- 
tion laws. Delaware thought the Virginia resolu- 
tions an unjustifiable interference with the powers 
of the general government. Massachusetts and Ver- 
mont denied the right of a State Legislature to 
usurp the powers of the federal courts. Penn- 
sylvania, Maryland, the Carolinas, Georgia, and 
Tennessee kept silence ; but the opinions of the 
seven States gave no welcome to the " doctrine of 
'98." So serious a repulse was not expected. 

The replies were referred to a committee of the 
House of Burgesses, of which Madison was chair- 
man, and he wrote a report which, taking up the 
original resolutions article by article, defended 

* The answers of the States are given in Elliot, Vol. iv., p. 532, 
etc. 

186 



Powerful Argument for State Sovereignty 

them, and at great length analyzed the Constitu- 
tion for the purpose of proving that the resolutions 
were in conformity with its express provisions.* 
Disclaiming any intention of the Legislature to 
diminish in any degree " mutual respect, confi- 
dence, and affection among the members of the 
Union," and pledging it " to maintain and de- 
fend the Constitution" and " to support the govern- 
ment of the United States in all measures warrant- 
ed by their Constitution," Madison argued that the 
federal government resulted from a compact to 
which the States were parties ; that federal pow- 
ers were derivative, not original ; that the term 
States signified the people of the particular gov- 
ernments, in their highest, sovereign capacity, and 
that in that capacity, each, acting for itself, sanc- 
tioned the Constitution. Therefore no tribunal 
above their authority existed which could decide, in 
the last resort, whether the compact was violated. 
With this idea as a principle of interpretation, 
he went through the Constitution, examining and 
expounding all its phrases bearing on the sub- 
ject. He cited the history of the country in refu- 
tation of the idea of national sovereignty. It was 
not granted by the - Constitution ; it did not exist 
by the common law, because the United States had 
no common law. The States, on the other hand, 
were a permanent and necessary element. They 
could propose and alone could ratify amendments. 
In the subdivision of a State its Legislature acted 

* The report is given in Elliot, Vol. iv., p. 546 et seq. 

187 



Constitutional History of the American People 

conjointly with Congress. They remained as they 
originated ; they were the creators of the general 
government. It was their agent. Therefore, the 
Virginia Legislature adhered to its resolution and 
continued its protest. 

But in this exhaustive report Madison in no 
way referred to nullification as the ultimate re- 
source of a State. To what extent it was inferen- 
tial would depend on what measure of residuary 
sovereignty one might demand for a State, and 
what degree of " palpable violation of the rights 
of a State " would be suffered. Nullification, like 
the idea of sovereignty, was left to be worked 
out in the practical administration of the govern- 
ments. 

The century was closing while this interpreta- 
tion of the doctrine of 98 was in progress. The 
silence of Pennsylvania, and of all the States south 
of it, save Delaware, was only negative testimony. 
But no State sent out a report on the sovereignty 
of the United States. Many party questions were 
already involved in the definition of sovereignty 
thus far made. National sovereignty, if clearly 
grasped by the leaders, was not thought of among 
the people. Everywhere among the people the 
idea prevailed, though more or less cloudy, that 
the general government was a common agent 
of the States. In democratic matters they had 
the right of way ; over foreign matters they had 
ultimate control. The States were united ; the 
general government was thought of as a political 
compound — not as an organism. 



Sixty Years of Democratic Rule 

The doctrine of '98 won in the election of 1800. 
The Democratic party was put in possession of 
the government. Instead of nineteen Federalists 
and thirteen Democrats in the Senate, there were 
now nineteen Democrats and thirteen Federalists. 
In the House the new party gained twenty-three 
members, and had a majority of eighteen. On the 
thirty-sixth ballot it chose Jefferson as President. 
Thus the man who made the doctrine of State 
sovereignty a principle in the creed of a great 
party was the first to be chosen to the Presidency 
by the House of Representatives voting as States. 
He wished the Kentucky and Virginia resolutions 
added as an amendment to the Constitution, but 
the addition seemed superfluous. The party that 
believed in them was in possession of the govern- 
ment, and, by their interpretation of the Consti- 
tution, would practically make the resolutions a 
twelfth amendment. Little did they dream that 
their lease of power should run sixty years; that 
during this period there was to be but one Con- 
gress — the twenty-sixth — in which they should 
not have a majority in one House. Of that 
Congress, their opponents should control both 
Houses; but John Tyler was then to be Presi- 
dent. Little did they dream that, later, he, alone 
of all the Presidents, was to put the idea of State 
sovereignty to the test by adhering to Virginia 
when she seceded, and by becoming a member 
of the Confederate House of Representatives. 
Whether State sovereignty is a true idea is one 
question; whether it prevailed in the eighteenth 

189 



Constitutional History of the American People 

century is another. The triumph of the doctrine 
of '98 indicates the dominant political creed of 
the times. A new party came in with the new 
century. The truth and value of their doctrines 
could be tested only by administration. 



CHAPTER VII 

THE POLITICAL ESTATE AT THE OPENING OF 
THE NINETEENTH CENTURY 

A government must be judged by the condition 
of the people who support it. If they are happy, 
prosperous, and contented, the mere form of the 
government is of little account. If their opinions, 
aspirations, and wants are ignored, a revolution is 
at hand. Some form of government will emerge 
from the political cataclysm, but only to be tested, 
like the old. 

We are prone to think that the American Rev- 
olution — with accent on the American — righted all 
political wrongs, and put the political estate in trust, 
much as we have it to-day. Was it not a triumph 
of the rights of man ? Did not Great Britain long 
deny them? Did we not establish free govern- 
ments, with laws of our own making and law- 
makers of our own choosing? Indeed, were not the 
days of the fathers better than our own ? He who 
knows least about the matter will doubtless answer 
" Yes " to all these queries. He who knows most 
will not regret that his lot is cast at the close of 
the nineteenth century rather than in the years 
when the fathers are supposed to have straighten- 
ed out the rights of man. 

It is written in the records of New Hampshire 

191 



Constitutional History of the American People 

how, on the 4th of November, 1775, its Provincial 
Congress adopted a resolution that delegates should 
be chosen by the electors, and not by the value 
of their estates.* This was revolution. Who in 
America had ever presumed to participate in the 
choice of delegates or select-men, or county com- 
missioners, without first being qualified to have an 
opinion because he owned a freehold estate ? The 
landless* man was the tramp of colonial times. He 
was not anchored to the State. Property, not men, 
voted. Fifty years before the Revolution the New 
Hampshire Assembly had refused to allow any 
person to vote who was not a freeholder, owning 
land of the value of twenty pounds ; and any per- 
son coming to reside in a town in the province, 
unless he was a freeholder, or a native of the town, 
or had served his apprenticeship in it, could not be 
an elector until he had first obtained the consent 
of the select-men.t In August of the last year of 
the seventeenth century, he who would vote in New 
Hampshire was required thenceforth to own land 
of the value of fifty pounds sterling. :j: Three years 
before,§ in the neighboring province of Massachu- 
setts, he only was permitted to vote who was a 
church-member in full communion, a householder, 
twenty-four years of age, with an income yearly of 



* Provincial Papers, Vol. vii., p. 644. The principal authorities 
for this chapter are the colonial laws. 

t New Hampshire Laws, 1726, p. 120. Printed by B. Green, 
Boston. 

\ New Hampshire Acts and Laws, Portsmouth, 1771, pp. 3,4. 

§ Massachusetts Laws, December, 1686. Boston, 18 14, p. 42. 

192 



Representation Regulated by Population 

at least ten shillings ; and this had been essentially 
the requirement since 1631. Time did not greatly 
ease the burden, for in 1692 the freeman was re- 
quired to be worth twenty pounds in land. Three 
years passed and a rude attempt at apportionment 
was made. Every town of forty freeholders might 
elect a member of the General Court, and a town 
having one hundred and twenty freeholders might 
send two. Towns having fewer than forty might 
combine, each paying its share of the expense of 
maintaining a delegate; or each town might elect 
and support its own* At the time of the Revolu- 
tion a town having two hundred and twenty free- 
holders could send three delegates ; and one with 
a hundred more, four.f The admission of freemen, 
at least in New England, was a local matter, rest- 
ing with the towns. Rhode Island, as early as 1663, 
adopted the rule4 A century wrought a change 
in the method of registration. The secretary of 
the colony kept the roll of the inhabitants, and he 
who owned real estate worth forty pounds, or that 
rented for forty shillings a year, and who had been 
proposed as a freeman three months before the 
election, might vote.§ Exception was made for a 
freeman's eldest son. He voted, " being the son 
of his father." But the lot of the freeman was not 
always a happy one. Connecticut, whose election 
laws were like those of Rhode Island, required, in 
1 715, that the freeman possess a certificate, signed 

* Massachusetts act, confirmed August 22, 1695. 

f Massachusetts act of November 29, 1775. 

% March 1st. § Act, 1762. 

I— N 193 



Constitutional History of the American People 

by the select-men, showing him to be " a person of 
a quiet and peaceable behavior and of civil conver- 
sation."* In law at least, those who, as the oath of 
a freeman described them, were " by the Providence 
of God inhabitants within this His Majesty's Colony 
of Connecticut," and bore a satisfactory reputation, 
were entitled to vote according to their conscience, 
" without respect of persons or favor of any man."t 
Strongly democratic in opinion, the people of New 
Hampshire, when the colony became a State,! 
abolished the old franchise qualifications, and, 
with almost unparalleled liberality, required of the 
voter only that he be a taxpayer, duly enrolled in 
a town. In this respect New Hampshire widely 
departed from Massachusetts, though freely adopt- 
ing many provisions of its constitution. Provin- 
cial traditions were too strong in Massachusetts 
Vto trust the political estate to any inhabitants 

!j who were not owners of real estate of the an- 

Vnual value of three pounds, or of an estate worth 

sixty, and who had not resided for a year in the 

town where they wished to vote.§ It may be 

/said that throughout colonial times an estate 

/ worth less than forty shillings a year did not 
count in politics. Its owner was excluded from 

\ the list of voters. 

Yet there were freemen and freemen. He who 



* Acts and Laws, Connecticut, p. 40. New London, T. Green, 
1715. 

t Laws of Connecticut, 1750, p. 175. 
I Act of September 11, 1776. 

§ Constitution, Massachusetts, Chap, i., Sec. 3, Art. iv. 

194 



Assumption of the Responsibilities of Citizenship 

lived in the City of New York in the middle of 
the seventeenth century and was not to the man- 
ner born, paid a various price for his political es- 
tate. If he was a merchant, a trader, or a shop- 
keeper, he paid five pounds; if a tradesman, twenty 
shillings ; if he had served his apprenticeship in 
the city, or was native born, he paid one pound. 
In addition, each paid sundry little fees, familiar- 
ly known as tips in our day — six shillings to the 
Mayor and six to the Recorder; seven-and-six to 
the clerk, and ninepence to the bell-ringer and 
crier, "for wild riot"; and yet some people in 
New England said New York was a wicked town. 
When the last fee was paid, the enfranchised one 
made solemn oath to the King, and swore obedi- 
ence to the Mayor and to the ministers of the 
city and to its franchises and customs, and prom- 
ised that he would contribute, to the city, tallage, 
lot and scot and taxes, and obey all summonses 
and watches, and warn the Mayor of gatherings, 
conventicles, and conspiracies ; and then the oath 
came to an end, and the men of fees disappeared 
and the new freeman wondered whether he had 
not sworn away even more than he had, includ- 
ing his liberty.* But it was a great privilege to 
be a freeman, what with the taxes and the con- 
spiracies and the lot and scot and the fees. They 
would not have to be paid again. And this was 
about a dozen years before the great Declaration 

* Laws, Statutes, Ordinances, etc., of the City of New York. 
John Holt, 1763, p. 23. 

195 



Constitutional History of the American People 

and " life, liberty, and the pursuit of happiness." 
Just sixteen years after these things, and when 
the State of New York was a year old, there was 
a reform. Henceforth every man in possession of 
land in right of his wife might vote — though she 
could not. And if he would vote for Senator or 
Assemblyman, he must vote in his own- district, 
and viva voce, but by ballot if he voted for Gov- 
ernor or Lieutenant-Governor. 45, With what pride 
he "abjured the Crown" in the new oath, and 
swore allegiance to " the free and independent 
State " of New York.t Was not this ample com- 
pensation for additional taxes ? 

Before the century closed New York was di- 
vided into four great districts,^: and Senate and 
House were all nicely apportioned and all the 
new counties in the western part of the State 
were clamoring for a reapportionment. But the 
four divisions — Southern, Middle, Eastern, and 
Western — were the four continents of the new 
political world, and the sea of change must not 
be suffered to wash them away. The spirit of de- 
mocracy was abroad and insisted in participating 
in the reform of representation. When, in 1801, 
the Assembly yielded to public clamor and called 
a convention, the election of delegates was to 
last three days, and " all free male citizens twenty- 
one years old " might vote.§ This, too, was revo- 
lution, for by the constitution of the State no man 

* Act of March 27, 1778. t Act of March 26, 1781. 

I By the constitution of 1776; also see act of March 4, 

1796. § Act of April 6, 1801. 

196 



High Standard of Political Qualifications 

could vote save he who possessed a freehold of 
the value of twenty pounds, or rented a tenement 
worth forty shillings a year, or who, in Albany or 
New York, had been admitted a freeman. 

In New Jersey the political estate was more 
difficult to acquire. There the freeholder had long 
been required to own one hundred acres of land, 
or real and personal property of the value of fifty 
pounds,* and this continued to be the require- 
ment when the colony became a commonwealth.! 
By the constitution of 1776 a duly qualified inhabi- 
tant might vote, and straightway women, aliens, 
and free negroes having the requisite property 
voted — in five counties — by ballot. Members of 
the Legislative Council, Assemblymen, sheriffs, 
and coroners were first nominated to the clerk of 
the court, in writing or personally, by the electors. 
The nomination list was advertised for two weeks 
before the election, when the final choice was 
made by the ballots of the electors.^ 

In Pennsylvania, in the seventeenth century, 
the political estate was in the exclusive keep- 
ing of the freeholders.§ An estate of fifty acres 
was equivalent to one of fifty pounds. A taxable 
was a voter, but not all taxables were voters, for 
the franchise was granted only to free white 
males. Just as the eighteenth century was clos- 
ing, the democratic spirit gained strength enough 
in the State to require only manhood suffrage — 

* Acts of April 4, 1709; December 16, 1783. 
t See Constitution, 1776. 

I Act of February 22, 1797. § 4 Annae, 1705. 

197 



Constitutional History of the American People 

the voter paying a State or county tax, or if voting 
on age — that is, for the first time — no previous tax 
was required.* Delaware was long a part of 
Penn's province, and its early laws closely resem- 
ble those of Pennsylvania.! So, too, did the laws 
of Maryland. But in Maryland fifty acres of land 
and property of the value of at least thirty pounds 
were equivalents. $ The freeman who possessed 
either had part in the political estate. 

No province began on a more liberal theory 
than Virginia. At first all freemen voted, but a 
few years' experience led to limitations. The 
voter must be a freeman,§ a householder, as in 
Massachusetts — and a freeholder, as was common 
in New England. Moreover he had to make 
oath that he was a freeholder. In the year when 
Pennsylvania exacted a suffrage qualification of 
fifty acres of land,|| Virginia required the elector 
to own " real estate for his own or another's life, 
or in fee," but did not fix the amount. Women, 
infants, and popish recusants were excluded from 
the electorate by the law of 1699, the earliest on 
the subject in this country. Thirty years' trial of 
the law requiring the voter to be a freeholder led 
to the act of 1736, fixing the amount at one hun- 
dred acres, or twenty-five acres " with house and 
plantation in his possession." If the estate lay in 
two counties, the owner voted where the greater 
part lay. The requirement was too heavy, and in 

* February 15, 1799. t Delaware, act of 1741. 

% Constitution, 1776. § Acts of 1654-55-66. 

li 1705- 

198 



The Ballot in North Carolina 

1762 was cut down to fifty acres, " unsettled," or 
twenty-five having a house twelve feet square. The 
act of 1 769 excluded women and free negroes from 
the suffrage. War compelled taxation. A poll-tax, 
in kind, was imposed in 1781 — a half -bushel of 
wheat, or five pecks of oats, or two pounds of 
sound bacon; but later in the year the tax was 
fixed at ten shillings. 

Election by ballot was established by the North 
Carolina Assembly in 1743, and the political es- 
tate was given into the keeping of freeholders pos- 
sessing each fifty acres of land and three months 
inhabitants of the county and six months of the 
province. The constitution of 1776 lengthened 
the time in the county to six months and in the 
State to twelve. A free male person thus quali- 
fied could vote for Senator. One paying " public 
taxes " could vote for a member of the House of 
Commons. Thus, free negroes possessed the con- 
stitutional right to vote.* 

In 1 72 1 South Carolina gave the right to vote 
to free whites professing the Christian religion, 
who resided one year in the province, and owned 
fifty acres of land, or paid a tax of twenty shillings. 
Sixty years before the Revolution the right to 
vote was given to free white men who had resided 
six months in the province, who were worth realty 
to the value of thirty pounds, current money, and 
who professed the Christian religion.! Ten years 

* For a discussion of this point, see debates in North Carolina 
Constitutional Convention, 1835. 
t Act of December 15, 1716. 

199 




Constitutional History of the American People 

later the requirement was changed to fifty acres 
of land or the payment of taxes on a fifty-pound 
valuation ; the religious qualification was as before. 
In 1745 the property qualification was raised to a 
freehold estate in a settled plantation, or three 
hundred acres of unsettled land, or taxed property 
worth sixty pounds.* Fourteen years later the al- 
ternative was allowed — an estate of sixty pounds 
in houses, or a tax of ten shillings.! * This was the 
law when the province became a State. Its first 
constitution omitted to prescribe qualifications 
for the elector. In its second, 1778, he was de- 
fined as a free white man, and no other, who ac- 
knowledged the being of a God, believed in a 
future state of rewards and punishments, who had 
attained the age of twenty-one years, had resided 
in the State a year before the election, possessed 
a freehold estate of fifty acres or a town lot for 
six months at least before the polls, or had paid a 
tax equal to the tax on fifty acres. The third con- 
stitution, 1790, modified the alternative to a tax 
of three shillings sterling. The qualification at 
the opening of the nineteenth century was, there- 
fore, but little changed from that under the act of 
1721. 

Georgia, the last of the colonies, was founded as 
the poor man's paradise. A white man worth ten 
pounds and a taxpayer, or "of any mechanic trade," 
could vote, by the constitution of 1777. The con- 
stitution of 1789 — with great liberality for the age 

* May 25, 1745. t April 7, 1759. 

200 



Aristocratic Democracy in Virginia 

— required only the payment of taxes and a resi- 
dence of six months in the county. Kentucky, 
making both her constitutions almost at the close 
of the century, and free from colonial traditions, 
made the qualifications of the elector liberal. A 
free white man who had resided in the State two 
years, or for one year in the county in which he 
offered to vote, was an elector by the first con- 
stitution — and also by the second, which special- 

| ly excluded negroes, mulattoes, and Indians. In 
Tennessee — or, as it was originally called, Wash- 
ington County, or District — the laws of North 
Carolina in force in 1795, when the new State 
was organized, were formally readopted with few 
exceptions.* The elector was, therefore, required 
to be a freeman and a freeholder, and for six 
months an inhabitant of the county in which he 
sought to vote. North Carolina traditions influ- 
enced Tennessee. Virginia traditions in Ken- 
tucky were not suffered to encumber the political 
estate. The new West was essentially democratic, 
as the first constitutions of Kentucky and Ten- 

j nessee attest. But their democracy must be meas- 
ured by the aristocracy that had so long prevailed 
in Virginia, the Carolinas, and Georgia, and not 
by the democracy that developed in the country 
after 1800. 

In no State was democracy further advanced 
than in Vermont. There the political estate was 
committed to freemen who had resided in the 

* Scott's Laws, 2 vols., Knoxville, 1821. 
201 



Constitutional History of the American People 

State one year, and who would take the oath to 
vote conscientiously and without fear or favor of 
any man.* This was manhood suffrage, the most 
liberal that had been granted in America thus 
far. The liberal States of the eighteenth century 
were New Hampshire and Vermont in the North 
and Georgia in the South. 

But there were other tests required of those 
whom the Revolution put in the place of the King. 
Not merely by the possession of property, nor by 
residence, nor because of age and racial advantage, 
were men made trustees of the political estate. A 
religious qualification was required. This, too, 
was a survival. For a century and a half, " being 
in church fellowship " had meant in Massachusetts 
membership in the Congregational Church. The 
Church of England was established in South Car- 
olina by act of Assembly at the opening of the 
eighteenth century,! and its second constitution — 
1778 — while granting religious toleration, declared 
" the Christian • Protestant religion " to be the 
established religion of the State. Connecticut and 
New Hampshire resembled Massachusetts in their 
provisions respecting church -membership as. a 
political qualification ; Virginia resembled South 
Carolina. But resemblance is not identity. In 
other States religious sects abounded and multi- 
plied till public opinion resembled that which 
ruled in the federal convention when the qualifi- 

* See Constitution, 1777. 

t See acts of November 4, 1704; December 18, 1708; April 8, 
1 7 10. 

202 



Disappearance of the Religions Qualifications 

cations for office were under consideration; no 
religious qualification could be adopted that would 
please all the States ; therefore all were abandoned. 
South Carolina, in its third constitution — 1790 — 
abandoned its State religion, and granted freedom 
of worship to all sects whose practices were not 
inconsistent with the peace or safety of the State. 

The religious qualifications, so strong in somej^ 
colonies for a time, in as far as they affected the 
voter, may be said to disappear with the abandon- 1 
ment of the first South Carolina constitution in / 
1790. The constitution of Massachusetts did not 
require church - membership. For a time public 
opinion did, but this encumbrance on the political 
estate may be said to have been fully satisfied be- 
fore 1820.* The office - holding class was not ex- 
empted so early. Governors and legislators must 
give security, and none other was thought equal to 
the property and religious qualifications. No man 
known to be irreligious could have been chosen 
Governor of Rhode Island or Connecticut in 
colonial times. In public opinion this was an un- 
written qualification. Had the office been elec- 
tive in other colonies, probably the result would 
have been similar. The colonial period was one 
during which property, integrity, and religion were 
inseparable in the public mind. It may be said 
now that church-membership is no longer conclu- 
sive evidence of probity or integrity. A man is 

* Amendment, Art. vii. (proposed by constitutional convention, 
1820 ; ratified April 9, 1821). See also Amendment, Art. xi., rati- 
fied November 11, 1833. 

203 



Constitutional History of the American People 

not defeated at the polls, as he would have been 
during the greater part of the eighteenth century, 
simply because he is not a church-member. Is it 
not fair to conclude that the people of that time 
had no other equally good test? Or, at least, 
that they thought so ? 

In 1705 — and the law was re-enacted thirty-six 
years later in Delaware — a member of Assembly in 
Pennsylvania was required to profess faith in the 
Trinity and the inspiration of the Scriptures. It was 
proposed to incorporate the same oath in the con- 
stitution of the State in 1776, and to have it apply 
to the electors and all officials. Franklin, the 
president of the convention, succeeded in limiting 
the oath to members of Assembly and in modify- 
ing it merely to a declaration of belief in God, the 
inspiration of the Scriptures, and a future state of 
rewards and punishments. The change in public 
opinion respecting requirements of this kind is re- 
corded in the constitution of the State, of 1790, in 
which the old provision barely survives in negative 
form, that no person who acknowledges the being 
of a God and a future state of rewards and punish- 
ments shall, on account of his religious sentiments, 
be disqualified to hold office in the State. And 
this provision is repeated in the constitutions of 
1838 and 1873. In 1704, the year before the Penn- 
sylvania act, the South Carolina Assembly had 
passed one of stricter ecclesiastical tenure. Mem- 
bers of Assembly who, within twelve months, had 
not received the sacrament, were required to take 
it according to the Church of England; and, in 

204 



Exclusion from Office for Religious Belief 

open Assembly, to deliver proper certificate to the 
fact, signed by the minister, or to prove the fact by 
two witnesses on oath. It is not strange that the 
first constitution of the State, seventy -two years 
later, should contain some survival of a public 
opinion that could dictate such a law. The New 
England States, New Jersey, and North Carolina, 
either by law or in their constitutions, limited office- 
holding to Protestants.* In North Carolina the 
qualification at last led to the calling of the con- 
vention of 1835 to modify the phrase. Jews were 
practically excluded from public office everywhere, 
and Roman Catholics also, except in New York and 
Maryland. These sects were not numerous in the 
country in the eighteenth century, but they ex- 
isted in numbers sufficient to prove a powerful 
accessory to the political party that should first 
declare for reforms in the franchise. They were 
joined, of course, by that increasing number of 
non - church people who considered all religious 
qualifications a violation of human rights. 

In 1800 there were one hundred and eight thou- 
sand free persons of color, and eight hundred and 
ninety thousand slaves. The slaves counted as 
five hundred and thirty -five thousand persons in 
the apportionment of representation in Congress. 
The free negroes were in an anomalous condition, 
and were politically a people without a country. 

* By the constitution of 1780 the candidate for Governor of 
Massachusetts was required to be worth ^1000 and "to declare 
himself to be of the Christian religion." The religious test was 
abolished in 1821, and the property qualification in 1892. 

205 



I 



Constitutional History of the American People 

In ten years their number had nearly doubled. Of 
their number, in the aggregate, during colonial 
times, there is no reliable record, but the record of 
their relations to society is ample and mournfully 
uniform. 

Negro emancipation had never been encouraged 
in the colonies. The young and the old could not 
be emancipated,* and, usually, he who set a negro 
free was required to give a heavy bondt to provide 
against his becoming a charge on the public.^ 
The freedman was hedged about by limitations. 
His certificate of emancipation must be recorded, 
and without it he could not safely travel within the 
county in which he lived,! nor leave it save at 
peril of being sold into slavery. § He could not 
be a witness against a white man.|| If he neg- 
lected to work, he and his children could be bound 
out to labor.§ In Virginia, until the constitution 
of 1776, no negro could be set free unless for mer- 
itorious service,^ and then only with the consent 
of the Governor and Council. On training-days 
and at musters, the free negro, in Massachusetts** 

* Those sound, from twenty -one to forty years old; act of 
New Jersey, March 14, 1798. In Maryland, not if above fifty years 
of age ; act of June 23, 1752. 

t New Jersey, act of March 14, 1798. 

\ Virginia, 1691 ; emancipator to pay for his transportation out 
of the colony. 

§ New Jersey, act xii., George I., 1725. 

1 Maryland, acts of June 8, 1717 ; December 31, 1796. 

H In Virginia, in 1779, a negro, Kitt, obtained his liberty for dis- 
covering a gang of counterfeiters. The State bought him for 
^1000 and set him free. 

** Massachusetts, act of 1699; confirmed, May 28, 1707. 

206 



Forerunners of Negro Emancipation 

and Virginia * alike, must appear, without weapons, 
and do whatever menial service was required of 
him. He might be allowed to serve as drummer 
or trumpeter, but usually he was found about the 
officers' quarters at servile labor. An act of the 
Virginia Assembly of 1777 emancipated a negro 
woman and her child whom one Barr had emanci- 
pated by will, with which the royal Governor had 
refused to concur ; but the act concluded in the 
usual form — " not to be construed as a precedent." 

Every precaution was taken to prevent the social 
meeting of free negroes and slaves. North Caro- 
lina explicitly forbade it " on Sunday, or between 
sunset and sunrise."! For the first offence the 
penalty was twenty shillings, and twice the amount 
for every subsequent one. South Carolina and New 
York were in contrast in their dealing with the sub- 
ject. New York was friendly to emancipation, pro- 
vided proper bond was given; and in 1792 empow- 
ered the State treasurer to pay to the overseers of 
phe poor in various towns money sufficient to sup- 
port manumitted slaves who had become a public 
charge. Vermont was the first State to apply the 
doctrine of human equality to negroes, its law de- 
blaring, tersely, that " the idea of slavery is express- 
ly and totally exploded from our free government."^ 

The constitutions of the eighteenth century are 
silent respecting free persons of color. They were 
not included in the political estate. Virginia and 
Maryland had each twenty thousand ; Pennsylvania, 

* Virginia, 1755. t North Carolina, 1727. 

X Vermont, 1787. 

207 



Constitutional History of the American People 

fourteen thousand ; New York, ten thousand ; Del- 
aware, eight thousand ; Massachusetts and North 
Carolina, about seven thousand each ; Connecticut, 
five thousand ; New Jersey, four thousand ; Rhode 
Island and South Carolina, each three thousand ; 
Georgia, one thousand ; New Hampshire, eight 
hundred ; Kentucky, seven hundred ; Vermont, five 
hundred; Tennessee, three hundred; about five 
hundred were living north of the Ohio ; eight hun- 
dred in the district of Maine; and less than two hun- 
dred in what was soon to be known as Mississippi. 
Whether in New England, the Middle States, 
or the South, the free negro found every man's 
hand against him. In New Jersey and North 
Carolina the constitution did not forbid his vot- 
ing, but public opinion was an unwritten consti- 
tution. He was an outcast; overlooked by the 
tax-gatherers, refused admission to the schools, de- 
nied entrance to the trades, dwelling on the thorny 
edge of village life, doctored by charity, watched 
by a slave -holding democracy, rejected from the 
society of the white race and forbidden to mingle 
freely with his own. Yet the function he served 
was a sort of political metaphor. How could 
slavery be the African's " natural and normal con- 
dition," and there be free persons of color? At 
the opening of the nineteenth century more than 
a hundred thousand persons were embodiments of 
the paradox. Would the time ever come when 
they would form a part of the political estate? If 
any commonwealth chose to admit them to citizen- 
ship, what effect would it have on interstate re- 

208 



Stern Functions of the State 

lations ? What interpretation would be put on the 
words of the national Constitution, that " The citi- 
zens of each State shall be entitled to all privileges 
and immunities of citizens in the several States "? 
What conflict was latent in the fact and the con- 
dition of free negroes ? American democracy, 
at the opening of the nineteenth century, gave lit- 
le sign that it was conscious of the impending 
hanges in the political estate which were to be 
effected in recognition of the rights of free persons 
of color. As yet no political party intimated that 
Such persons had rights which democracy was 
/bound to respect. 

From this brief survey of one aspect of the 
political estate at the opening of the new century, 
it appears that government, in American democ- 
racy, was at this time in the hands of the few 
who were conventionally restrained from political 
wrong -doing by social, religious, and property 
ualifications. The mass of the population was 
xcluded from the estate. Yet few escaped taxa- 
on. The value of property, not the votes of elec- 
tors, controlled the democracy of the day. Prop- 
erty was the electoral check and balance. 

What did the State do for the people ? It is 
iasier to tell what it did not do. It did not give 
them free schools, free hospitals, or free asylums. 
Its penal code was punitive, not remedial, save 
in Pennsylvania. Commerce, trade, and transpor- 
tation were monopolized by individuals, and, as 
yet, competition but slightly benefited the public. 
The poor-house was the common receptacle for 
i. — o 209 



Constitutional History of the American People 

the insane, the imbecile, the orphan child, and the 
aged and decrepit pauper. 

Government of this kind fostered streaks of 
class and petty social distinctions. The landless, 
the laboring class, the mechanics, and the young 
apprentices were at the bottom ; the landholders, 
the well-born, the merchants, the doctors, the min- 
isters were high in the scale. The new wine of 
democracy was flowing over the country and a 
counter-revolution was at hand. Who was to 
gather together the masses and consolidate the 
disaffected into a powerful party? Who would 
advocate the extension of the suffrage, the aboli- 
tion of property and religious tests ? How long 
before democracy, the masses, would be demand- 
ing a share in the political estate ? 

Thus, as the new century opened, though the 
power of property was in the saddle, the democ- 
racy of men was at hand. Unless America 
should be a government of men, the theories of 
the eighteenth century would have to be aban- 
doned, and the new governments, in nation and 
commonwealth, would fail for lack of men. If 
all men were created equal, then the mass of 
provincial legislation which the commonwealths 
inherited must be in large measure discarded. 
New laws, consistent with the dominant ideas of 
democracy, must be made. The resolution of 
the New Hampshire Congress, eight months be- 
fore the Declaration of Independence was written, 
was a hint of the way men were going and of im- 
pending changes in the organization of society. 



CHAPTER VIII 
THE FIRST MIGRATION WEST 

Among the fireside stories of the old Northwest 
none is more frequently told than that of General 
Wayne's victory over the Indians at Maumee, # his 
treaty with them at Greenville,! and how the de- 
feated savages were forced to give up their lands 
to the whites. From that day the Western coun- 
try could be travelled in safety, and immigrants 
could take up lands. For nearly a century and a 
half England and France had struggled for this 
region, and their struggle came to a strange end- 
ing. The brooding mind of Pontiac, " King and 
lord of all the Northwest," had conceived the ter- 
rible plot, only twenty-two years before, to drive 
the English over the Alleghany Mountains, and 
destroy every white person found west of Chau- 
tauqua Lake. Traditions of Pontiac's conspiracy 
still linger in the Northwest. 

From the day of Wayne's victory Indian at- 
tacks were no longer feared in Western Pennsyl- 



* August 20, 1794. 

t The treaty at Greenville, August 3, 1795, opened to settle- 
ment the country from Cleveland westward and southwestward, 
within the " Wilderness Road " shown on the map of the United 
States, 1796. See Map opposite p. 158. 

211 



Constitutional History of the American Teople 

vania and in Eastern Ohio. Beyond Fort Wayne 
the country was infested by hostile tribes, and 
other victories must be won before it could be 
open to settlement. Wayne's victory was speedily 
followed by the settlement of the lake shore from 
Black Rock to Detroit. Western New York and 
the greater part of the Triangle in Pennsylvania 
were claimed by the Holland Land Company. 
Speculation in land was one of the chief vices of 
the time. Individuals and companies expected 
to reap fabulous wealth from the rise in land 
values. Before the eighteenth century closed 
every acre of land which Wayne's victory had 
brought within reach of immigration was entered 
in some scheme of speculation. Of the best of 
these companies the Harrisburg and Presque Isle 
was a type. It was formed on the 13th of August, 
1 796,* by ten men, who, under a written compact 
styled a constitution, agreed to pay, severally, the 
sum of two hundred pounds, as common stock, to 
be expended " in the purchase of in and out lots in 
the towns of Erie and others, and of lands in the 
State of Pennsylvania, north and west of the Ohio 
and Alleghany rivers." The purchases were at 
Erie. Waterford, and Franklin. In Erie the com- 
pany paid from three to eighteen dollars for lots 
on Holland, German, State, French, and Parade 
streets, below Seventh ; for the corner lot at 
Second and German, and for the opposite corner, 
" on the road to the Fort," two hundred and sixty 

* See Forster's Manuscript Letter -book for account of this 
company. 

212 




SHOWING CIVIL DIVISIONS 
*AND DISTRIBUTION OF POPULATION 



Transportation in the New West 

dollars each. For five-acre out-lots the price 
ranged from thirty -three to sixty -nine dollars. 
Fifty-five dollars were paid at Franklin for an in- 
lot at the mouth of the French Creek, and from 
fifteen to fifty-nine dollars for in-lots at Waterford, 
which, at this time, promised to be at the head of 
navigation in this part of the Ohio Valley. A 
portage to Erie, fifteen miles to the north, would 
make the great lakes and the Ohio a commercial 
highway. Washington had a similar dream of 
uniting them by a canal from Chautauqua Lake to 
Lake Erie. 

The company originated at Harrisburg, and 
rated its shares at fifty dollars each. Profits were 
expected from sales of lands incident to immigra- 
tion, also from a grist-mill which the company pro- 
ceeded to erect at Erie. Milling supplies were 
hauled by wagon from Harrisburg. The road was 
fairly passable as far as Pittsburgh, but from that 
point to Erie was for long distances scarcely more 
than a bridle-path. In summer, at low-water, much 
of the journey could be made over the bed of the 
French Creek. The journey from Harrisburg con- 
sumed nearly four months. 

Three other "population companies " were specu- 
lating at this time in Pennsylvania lands; Aaron 
Burr, with others, had devised the Pennsylvania 
Company, received a charter from the Legislature 
in 1793, and purchased land - warrants covering 
nearly the entire Triangle. To encourage immigra- 
tion, this company offered to give one hundred 
acres to each of the twenty families that should 

213 



Constitutional History of the American People 

first settle " on Lake Erie territory." The settler 
was to clear ten acres, erect a comfortable dwelling- 
house, and live in it two years — " unless driven off 
by Indians." The time during which the Indians 
might drive him into involuntary exile was not 
to be counted against him, and his heirs were 
privileged to continue his claim. 

Two streams of population were at this time 
converging at Erie — one from Pennsylvania, 
Dauphin County, chiefly; the other from New 
England, and, principally, Connecticut and Eastern 
New York. The Pennsylvania stream was rein- 
forced in Alleghany and Westmoreland counties, 
and consisted chiefly of people of Scotch- Irish 
stock. The New England migration was of Eng- 
lish stock. Nearly all were farmers, and, as was 
often the case, neglected, or were unable to se- 
cure, good land-titles. Some held from one com- 
pany, some from another ; some from individuals ; 
and many had title only by possession. The first 
crop was, therefore, one of lawsuits. A test case 
at last reached the Supreme Court, and John 
Marshall sustained the claims of the Holland 
Land Company.* In consequence, many pioneers 
were forced to pay for their land again or lose it. 
Some preferred to abandon their claim and take 
up cheap government land in Ohio. Others, at 
great sacrifice, paid the second time. They "went 
sailing on the lakes"; they made pearlash ; they 

* See Huidekoper's Lessee vs. Douglass, 3 Cranch, pp. 3-73 ; 
the case gives much information regarding the condition of the 
Chautauqua country from 1792 to 1800. 

214 



Unsettled Condition in the Chautauqua Country 

raised a few " extra head " of cattle ; they hired 
out their labor. The evil reputation which the 
Triangle got among immigrants from the East, 
on their way to the Ohio country, helped some 
Pennsylvania farmers who were struggling to pay 
again. Farm - houses were converted into tem- 
porary inns, and, by entertainment of man and 
beast, the owners gathered a little silver money.* 
Similar were the difficulties in Western New 
York ; but for these the settlers themselves were 
chiefly to blame. Many relied on mere possession 
to give title. Some claimed under bargains with 
the Indians. Some had bought of the Holland 
Company and defaulted payment. News, more or 
less exaggerated, of cheap lands in the West kept 
the Chautauqua country in unrest, and was made 
an excuse for unsettled payments. Not until 1835 
were the disputes ended — when William H. Sew- 
ard, then a young lawyer from Albany, appeared 
at Westfield as the agent of the Holland Company.! 
By judicious compromises he secured title for the 
farmers, quieted the angry spirit of the region, 
and by his integrity and administrative skill laid 
the foundation of his popularity in Western New 
York. His pacific settlement of the land troubles 
contributed largely to his election as Governor of 

* My knowledge of early life along the Lake Shore from Buf- 
falo to Cleveland has been principally derived from information 
contained in the letters of early settlers, from conversations with 
many of them, from the Forster manuscripts, and from early 
newspapers, especially the Buffalo Gazette. 

t His land-office, a low, one-story brick building, was standing 
in 1885. 

215 



Constitutional History of the American People 

the State in the following year. It was this elec- 
tion that opened the way to a national career. 

In 1799 the Northwest was erected into a rev- 
enue district, with Presque Isle as the port of en- 
try. Adams appointed Thomas Forster collector, 
and he held the office for thirty-eight years — the 
longest service of the kind in our history. The 
first entry was an open boat, called the Schenectady, 
with a cargo valued at $81 1.85. Its invoice shows 
the demands of the country in i8oi. # There were 
muslins, and cotton shawls at $3.75 apiece; green 
cloth and blue at $3 a yard ; elastic stripe at $1.25 ; 
spotted kerseymere of American manufacture 
at #1.40 per yard; men's stockings at $1 a pair; 
worsted caps for men and women at 25 cents each ; 
watch-chains at 34 cents, and watch-keys at 15 
cents; two dozen crooked combs at $1 each; 
penknives at $1.50; tin snuff-boxes at 5 cents; 
glass pendalls at 34 cents; bridle-bits at 54 cents; 
golosh shoes at $2.25; almanacs; pistols at $7; 
weaving-reeds; and needles at $2 a thousand. 

The Prince brought puncheons of spirits, bags 
of cocoa, and hogsheads of molasses; the Nep- 
tune, chests of hyson ; the Tulip, silk shoes and 
china-ware; the Dauphin, claret, spermaceti can- 
dles, cases of jewelry and plated ware, and bandana 
handkerchiefs ; the Wilkinson, bound for Detroit, 
carried cannon, shot, wine, muster-rolls, candles, 
and carriages. But the goods entered at the port 
were a small part of the merchandise imported 

* Custom-house records, Erie, Pennsylvania. 
216 



Smuggling Tendencies of Some Early Pioneers 

into the country. Every large creek along the 
south shore of Lake Erie concealed smugglers. 
The collector was distracted by conflicting re- 
ports. Some one had seen a coat made of broad- 
cloth on the back of a man from Ashtabula; 
another had seen lights at the mouth of the 
Twelve-mile Creek; a third had seen new goods 
exposed for sale at Freeport ; a fourth had seen 
the sloop Good Intent off shore, and Master Lee, 
as everybody knew, was a bold smuggler.* 

Jefferson's policy of non- intercourse was not 
successful or popular in the Northwest. Smug- 
gling increased daily. In vain did Gallatin com- 
plain and Forster report. Not a vessel could 
leave Presque Isle " without the special permis- 
sion of the President." Gallatin instructed For- 
ster that while temptation to import every species 
of merchandise contrary to law might exist, the 
collector would only have to encounter " the com- 
mon acts of smuggling, and not the interests 
and prejudices of the community." Gallatin lit- 
tle understood the pioneers along the great lakes. 
Smuggling might be an offence, but certainly 
not a crime. They thought themselves entitled 
to the privilege of purchasing goods at the lowest 
possible price. The United States government 
was a thousand miles away. 

At this time the settlers living in Westfield 
were compelled to go to Canada to have their 



* Custom-house records, Erie, Pennsylvania. Also Forster's 
letters. 

217 



Constitutional History of the American People 

grain ground, and the farmers in Erie County 
went to Pittsburgh. Money was so scarce as to 
be a curiosity. Settlers were coming in daily. 
They had been three months on the way from 
New England; they had come in ox -carts. At 
night they had stopped with some of the num- 
erous tavern-keepers along the way, paying six- 
teen pence for lodging and the use of the fire- 
place — for they brought their food and cooking 
utensils with them. When the immigrant had 
located his claim, he at once began underbrush- 
ing and logging. His house was of logs saddled 
and notched; the roof of bark, kept down by 
weight-poles. The square chimney of sticks, cob- 
laid, was plastered on the inside with mud mixed 
with chopped straw. The " door-cheeks " were 
puncheons, and the door swung on wooden pins. 
Many cabins had only blanket doors. The win- 
dows were of paper, or, in rare instances, of panes 
of glass four by six inches. The bedstead was 
of poles ; the table was the blue chest brought 
from New England. A few teacups, saucers, 
wooden or pewter plates, an iron pot, a spider, 
a bake-kettle, a cotton or tallow dip, or a turnip 
lamp ; a rude shelf supporting the Bible, a copy 
of Allen's Alarm, or The Pilgrim's Progress, or 
Baxter's Saint's Rest; a gun across two pegs; 
skins stitched and tacked to the logs; a few 
three-legged stools and a gourd dipper, com- 
pleted the furniture. Near the house a similar 
building sheltered a cow, a yoke of oxen, and a 
litter of pigs. 

218 



The Cradle of Our Industries 

With the heaps of glowing ashes the pioneer 
paid for his land. The first patent granted by the 
United States was for an improvement in the 
manufacture of pearlash. At first the black salts 
brought only two or three cents a pound ; but the 
price advanced until 1825, when above five hun- 
dred tons were shipped from Westfield, and more 
than forty-five thousand dollars were paid to the 
farmers of Chautauqua County. The early settlers 
had not even hand-mills, but were compelled to 
extemporize a substitute — as a spring pole, with a 
suspended stone or cannon-ball, and the concave 
surface of a hickory stump. 

The loom was soon set up, for the flax had 
been sown. The entire manufacture of cloth and 
clothing for the household was done by the 
women. Linen sheets, counterpanes, and hand- 
kerchiefs were woven in white and blue. As soon 
as the farm was stocked with sheep, woollen 
goods were woven, and men and boys wore but- 
ternut suits of linsey-woolsey. While working in 
the clearing or in the field the men sometimes 
wore leather breeches, and a common clause in 
the early wills of the region is the devise of the 
father's leathern clothes to his eldest son. 

From an early day the teachings of Calvin gave 
character to the people in the scattered settle- 
ments of Upper Buffalo, Conewango, Chartiers, 
Meadville, Erie, and Cleveland. The Presbyterian 
faith prevailed. The early ministers were cir- 
cuit-riders, New England licentiates, and preach- 
ers duly ordained. They came chiefly from Con- 

219 



Constitutional History of the American People 

necticut or central Pennsylvania, and many were 
bred in the divinity school at Yale. A single 
sermon fed the entire circuit, which extended from 
Albany to Cleveland, from Presque Isle to Pitts- 
burgh. 

Armed with his Bible and his rifle, the preacher 
traversed the wilderness and passed his years in a 
life of rude romance. Overtaken by night and 
storm, he stopped at some friendly cabin, or, turn- 
ing his horse loose, slept for safety in the crotch 
of a tree. He shared the rough life of the times. 
The news of the world travelled with him, and his 
saddle-bags contained the closely written and 
firmly sealed letter from the mother in the East 
to her children in the West. With day's labor 
the pioneers had built the meeting-house of logs 
and bark and puncheons. The seats were logs, 
the pulpit the stump of a tree. The house had 
neither fireplace nor stove. On the day ap- 
pointed for service, people came with provisions 
to last a week. Fires were kindled, kettles were 
swung, food was unpacked, rude tables were 
spread, the hum of voices and the shouts of new 
arrivals filled the air. The lonely meeting-house 
suddenly became the centre of a camp -meeting. 
The preacher arrived in company with one of the 
elders, at whose house he had spent the night. 
After many greetings and inquiries, the service 
began out-of-doors, for the meeting-house was too 
small to hold the people. At the sound of the 
conch -shell, order and silence reigned, and the 
preacher began by lining a psalm from Rowe's 

220 



Itinerant Teachers of Christianity 

version. The melody was a minor rondo or a 
familiar Scotch tune. Oftentimes the only hymn- 
book was the minister's memory. The prayer was a 
sermon in itself; the sermon would make a book. 
All the way from Connecticut the sermon had 
been gathering length and strength. It abounded 
in exciting personal experiences, thrilling illustra- 
tions, and fearful warnings. 

On the fourth day the communion-tables were 
prepared, the seven deadly sins were reviewed, 
the tables were "fenced," and the leaden tokens 
were distributed to communicants. The sacra- 
ment was solemnly observed. With a wondering 
look, the Indian, hidden from view, beheld a strange 
sight in his native woods. 

About the opening of the second decade of the 
century a few Methodist preachers ventured into 
the land ; but they were suspected of heresy and 
were unwelcome. The severe Presbyterian held 
such itinerants as Lorenzo Dow in horror, and 
classed the British, the Indians, and the Methodists 
together. 

The first stores in the country would now have 
the interest of a museum. Into one place were 
gathered for trade and for barter dry - goods 
and wafers, dyestuffs and sand, boxes, quills, and 
hardware, drugs and medicines, boots and shoes — 
which were neither rights nor lefts — molasses and 
whiskey; loaf-sugar at three shillings a pound, 
hyson-skin tea at fourteen, pins at two-and-six 
the paper, powder at eight shillings a pound and 
shot at two, unbleached cotton at fifty-five pence 

221 



Constitutional History of the American People 

the yard, satinet at twenty-seven and sixpence, 
maccoboy snuff at eight shillings a pound, coffee 
at five, writing-paper at four shillings a quire, 
whiskey at twelve shillings a gallon, Webster's 
spelling-books at three shillings each, ginger at six 
shillings a pound, flour at eighteen dollars a bar- 
rel, salt at twenty-two — and Colonel Forster might 
tell the purchaser that, during the six years clos- 
ing with 1805, to Erie City alone fifteen thousand 
barrels had been brought from Salina, first by 
wagon to Black Rock and thence by the lake. 
Cheese stood at two cents a pound, butter at 
seven, pork at two, wheat at three shillings a 
bushel and oats at one, calico at six-and-six the 
yard, and broadcloth at ten dollars. 

Shoemakers, tailoresses, school - masters, pack- 
peddlers, and doctors comprised almost the w T hole 
of the travelling population. The doctor had 
learned his art in a practitioner's office "down 
East." Patients were bled, purged, and buried. 
A favorite prescription of Dr. Prendergast* was 
" 2 oz. val. sylv. and caskarel t and epispastic," for 
which the patient or his estate paid one pound 
four shillings. The fever -stricken were denied 
water, but fed bounteously with calomel ; the win- 
dows in the sick-room were carefully sealed, in 
order to prevent draughts. Frequent epidemics 
of small-pox or typhus overran the country. 

The school-master was an incipient preacher or 
physician. In the hollow square of the school- 

* Of Fredonia, New York. f Probably castor-oil. 

222 



Limited Curriculum of the Village School 

room there raged a perpetual battle between the 
" master" and the larger boys. The windows were 
of larded paper, and the puncheon seats kept the 
children's feet just off the floor. Daball's arith- 
metic, Webster's spelling-book, the English reader, 
and quill -pen copies constituted the material for 
the curriculum. Educational literature did not 
exist. Seldom were two scholars in the same 
book or at the same lesson ; children were sent to 
school to learn to read, to write, and to do sums. 
Schools were maintained by a rate-bill, which might 
be diminished by boarding the teacher. In the 
evening he was expected to help the children at 
their sums, to amuse the household, and, later, to 
sleep in a frosty bed. 

The century was six years old before a court 
was held in Erie. Judge Yates, as was the custom 
among members of the State Supreme Court at 
that time, travelled over the circuit on horseback. 
In Chautauqua County the foreman and the 
secretary of the grand jury paid each a bottle of 
brandy for the honor of his seat. Taverns were 
thickly sprinkled over the principal roads, and 
tavern -keeping was the most profitable business 
in the country. Strange stories are told about 
some of these taverns, and the tragedy at Button's 
Inn has gone into literature. 

Erie was made a post-office town in 1798, and 
the quarterly returns for April, 1805, were sixteen 
dollars and twenty - eight cents. Between New 
Amsterdam (now Buffalo) and Erie the road was 
almost impassable, and the mail, at regular inter- 



Constitutional History of the American ^People 

vals, was carried in a handkerchief by a horse- 
man. Two years later — 1807 — mails once a fort- 
night between Erie and Buffalo were carried by 
a horseman for one hundred and forty dollars a 
year. In 181 1, John Gray agreed to carry the 
mail from Buffalo to Cleveland, once in two weeks, 
for three years, at nine hundred and fifty dollars a 
year. To-day these cities are six hours apart and 
correspond by a dozen mails a day. 

Five years were to pass before Meadville, Oil 
Creek, Warren, and Mayville were included in a 
mail -route. The first quarter of a century was 
over before a daily stage -line ran from Erie to 
Buffalo. Often at dead of night the farmer was 
aroused to help the immigrant, or Colonel Bird's 
carry-all, out of the sink-hole in the Buffalo road. # 
Travel by stage was considered peculiarly danger- 
ous. The fare by day, in summer, was four cents 
a mile ; in winter the roads were closed. 

In the farm-houses there were no children's books, 
no toys, no games, no pictures, no musical instru- 
ments. The business of life was to work. Each 
household was a self-sustaining colony — a New 
England in miniature. Many years passed before 
planted orchards bore sufficient fruit to make un- 
necessary the autumnal gathering of wild apples, 
fox-grapes, and wild plums. The boys gathered am- 
ple harvests of beechnuts, butternuts, walnuts, and 
chestnuts ; the girls made stores of dried pump- 

* Travellers agreed that one of the worst was just west of 
"The Gulf," or Twenty -mile Creek, near the State line — New 
York and Pennsylvania. 

224 



An Aristocracy of Wealth 

kins and dried apples. Apple-bees, husking-bees, 
and quilting-bees were a laborious recreation. In 
summer might be seen an occasional posy-bed of 
moss -pinks, marigolds, poppies, lavender, balm, 
sweet-williams, and summer - savory. Near the 
door grew lilacs, hollyhocks, and caraway. 

In religion, nearly all were Calvinists ; in poli- 
tics, those from the East were Federalists ; those 
from the South, Democratic - Republicans. But 
religion was of far deeper interest to them than 
politics. They knew little of the State Legis- 
lature and less of Congress. The ideas now 
embodied in the word nation never occurred to 
them. Life was a serious business. They had 
little time to speculate; their wants were press- 
ing and immediate. In 1810 the entire coun- 
try from Buffalo to Detroit, that now has a pop- 
ulation of more than a million, did not have five 
thousand. 

Along the frontier, distinctions in social rank 
were drawn according to rules unknown in the 
East. Birth counted for little ; wealth levelled all 
other distinctions. The struggle for existence 
strengthened individualism. Isolated settlements, 
such as the older towns in the West were at first, 
developed a unique aristocracy largely composed 
of the families of the more prosperous tanners, 
lumbermen, and farmers, with a few surveyors and 
civil functionaries, of whom the postmaster and 
the squire were easily first. The event of the 
year was training-day, when the raw youth of the 
district tried their best to understand the noises 
1. — p 225 



Constitutional History of the American People 

hurled at them by their commanding officers. It 
was thought to be a military age, and easily ran to 
militia titles. Who in middle life to-day does not 
remember some large citizen of the days of his 
childhood who was the colonel or the captain — 
not merely a colonel or a captain, as in later 
years. As each militia company elected its of- 
ficers, titles did not easily run out. In our day 
men find employment for their surplus social en- 
ergies in belonging to countless societies, lodges, 
and associations, and such membership ignores 
distance. The man who now has a lodge-night six 
times a week, had he lived then, would have been 
forced to concentrate his social dissipation upon 
general musters, election days, and religious meet- 
ings. 

In the West and Southwest it was easier and 
more profitable to transport whiskey than corn. 
The federal collectors hardly ventured over the 
mountains, and a licensed still was unknown. 
Drunkenness was the prevailing evil of the times. 
A grocery-store was usually a liquor-store. In 
the Northwest some families held slaves, in the 
early part of the century, in spite of the great Or- 
dinance, and a greater number had colored ser- 
vants, who, though free by the law, were members 
of the household and received no wages. In ten 
years population overspread the greater part of 
Ohio and Tennessee, crossed the Indiana border 
in the Southeast, and began to appear along the 
northern bank of the river; but the Indian coun- 
try began below the latitude of Indianapolis and 

226 



The Purchase of Louisiana 

Springfield. Emigration from South Carolina and 
Georgia was checked by the Creeks and Chero- 
kees ; and the Chickasaws, and the lesser but 
equally fierce tribes, held back the people of 
Tennessee and Kentucky from the rich bottom- 
lands of Mississippi. Nineteen in twenty of the 
population lived in the country. Nineteen in a 
hundred were negroes, living almost wholly south 
and southwest of Pennsylvania. 

Before the westernmost advance of population 
reached the Mississippi, Louisiana was purchased 
from Napoleon. In 1800 it had been conveyed 
to France by Spain, in a secret article of the treaty 
of San Ildefonso, without definition of boundaries. 
Jefferson made public the purchase on the 21st 
of October, the three hundred and eleventh anni- 
versary of the discovery of America. Marshall 
spoke of the treaty as one of " studied ambiguity." 
It contained one article which, as it came to be 
administered, proved a sweeping clause. The in- 
habitants, as soon as possible, were to be incorpo- 
rated in the Union, " according to the principles 
of the federal Constitution," and, meantime, were 
to be protected in the enjoyment of their " liberty, 
property, and religion." At once it was claimed 
that "property" included slaves, and that the 
treaty, according to the Constitution, was a part 
of the supreme law of the land. However slight 
as yet might be respect for the federal govern- 
ment, it was a guarantor of slavery, and there- 
fore entitled to some allegiance. The clause in 
the treaty proved before many years to be one 

227 



Constitutional History of the American People 

of momentous interpretation of the functions of 
the general government. It was one of the first 
epoch-making measures of the century. Before 
the century closed, the Louisiana country was to 
consist of fifteen commonwealths, and their consti- 
tutions and laws were to be strongly influenced 
by the issues germinant in this article. Congress 
speedily erected the Territories of Orleans and 
Louisiana, specially providing that federal laws 
respecting the slave-trade and fugitives from jus- 
tice should be in force in them. 

The purchase of Louisiana changed the history 
of the United States. As long as the Mississippi 
remained the western boundary of the country, 
the North and the South were conventionally, 
if not economically, equal forces in government 
The new acquisition suddenly and permanently 
changed old relations. The area of the United 
States now became about two million square 
miles, of which by far the greater portion lay 
north of the latitude of 36° 3c/. Orleans touched 
the Spanish possessions, and was the westernmost 
extension of slavery. In the far Northwest the 
Louisiana country joined Oregon, and thus the 
United States extended from the Atlantic to the 
Pacific. West of the free States there thus sud- 
denly opened up an almost unlimited opportunity 
for the extension of free institutions. A conflict 
between slavery and freedom for its control was 
inevitable. All the energies of the country, so- 
cial, economic, and political, were soon marshalled 
on one side or the other. The contest between 

228 



Provision for Public Education 

freedom and slavery, hitherto obscure, was from 
this time carried on with increasing fierceness 
for sixty years. 

In 1802 Congress authorized the people living 
in " the eastern division of the Territory north- 
west of the river Ohio " to form a State govern- 
ment. Only taxpayers who were citizens of the 
United States and residents of the Territory for 
one year were allowed to vote for members of the 
convention. Congress empowered the delegates to 
accept or reject its offer of every sixteenth section 
of land in every township for the use of schools, 
and the reservation of certain military lands and 
salt-springs for the use of the State. The lands 
thus set apart for the support of schools com- 
prised, in the aggregate, an area greater than half 
the State of Connecticut. No provision of the 
kind could have been made in Kentucky, Tennes- 
see, or Mississippi. There Congress never had 
title to the land. Large portions of the Missis- 
sippi Territory were in private ownership before 
it came fully under federal control. The two sec- 
tions of the West, the northern and the southern, 
thus began with unequal facilities for public edu- 
cation. The difference was largely temperamental, 
and characteristic of their populations. The 
Eastern habits of the people of Ohio could not be 
shaken off. Though the majority of the settlers 
were unlearned men, there were few illiterates, 
and none who did not wish their children to have 
an opportunity to attend school. The spirit of 
the people dictated the provision in the constitu- 

229 



Constitutional History of the American People 

tion of 1803 forbidding the Legislature to enact 
laws that would prevent the poor from an equal 
participation with the rich in the schools, acade- 
mies, colleges, and universities in the State en- 
dowed in whole or in part with the revenue aris- 
ing from the school -lands granted by the United 
States. No distinction or preference in the re- 
ception of students and teachers should ever pre- 
vail in these institutions. Congress thus began a 
new policy, by which public education became an 
essential part of commonwealth organization. It 
was followed in the enabling acts for later North- 
ern States, and led eventually to provisions for 
education in their constitutions. From the day 
Ohio was admitted, and largely because of its 
generous equipment for public education, began a 
new concept of the functions of an American com- 
monwealth. The provisions for public institu- 
tions of learning were the first and the principal 
cause of a change in the popular idea of the 
State. From this time the State had the gift of 
education in its hands, and the public began to 
look to the State to do things which had before 
been done by individuals or not at all. Educa- 
tion at the expense of the State meant the down- 
fall of discordant individualism. A beginning was 
made in the education of the masses, in a common 
school-system. It is impossible fully to estimate 
the importance of education in a democracy. The 
educational grant to Ohio was, in all its aspects, 
the first of the kind in history. 

Responsive to movements of population, Con- 

230 



The Formation of Territories 

gress in 1805 organized Michigan from the In- 
diana Territory, with Detroit as the capital, and, 
four years later, again divided Indiana, calling the 
new Territory Illinois, and making Kaskaskia its 
capital. The northern peninsula remained part of 
Indiana. Georgia, in 1802, ceded to the United 
States the lands between her western boundary 
and the Mississippi, for which she received one 
and a quarter millions of dollars and the obliga- 
tion of the United States to extinguish the Indian 
titles within the State. The Mississippi Terri- 
tory, which at first was a narrow strip along the 
boundary of West Florida, was now extended to 
Tennessee, with promise of admission into the 
Union at the discretion of Congress. The act or- 
ganizing the Territory guaranteed slavery. White 
men above the age of twenty-five, citizens of the 
United States and residents of Mississippi one 
year, owning fifty acres of land and a town lot of 
the value of one hundred dollars in the Territory, 
were allowed to vote. This property qualifica- 
tion, in contrast with manhood suffrage in the 
Northwest, was in keeping with precedent in 
most of the States. 

The white race was now increasing relatively 
faster than the black. Cities were multiplying in 
number, but not in their proportion of the popula- 
tion. They were centres of trade and litigation, 
but manufactures and towns were not yet synony- 
mous terms. The age of factories began after the 
second war with England. As population became 
denser in the older regions of the country the press- 

231 



Constitutional History of the American People 

ure westward found voice in a common demand for 
more land. The pioneer was treading on the heels 
of the Indian. 

Two Indian wars broke out almost at the same 
time — with a confederation of tribes in the North- 
west, with the Creeks and Seminoles of the South- 
west, constituting, as the people of the West though t, 
the principal part of the war of 1812. They would 
have broken out had that war never occurred. The 
wave of population was dashing against Indian bar- 
riers, and there could be only one result. Immigra- 
tion westward had now overrun what were thought 
to be the best lands made accessible by Wayne's 
treaty of 1795. Twenty years had passed. A new 
generation demanded cheap lands. 

Hundreds of battles have been fought, surpass- 
ing in fierceness, and in the number and the skill 
of participants, the battle of Tippecanoe. Yet 
because of its effects on the development of the 
West it lingers in the memory of the people like 
Lexington and Fort Sumter. Another Pontiac 
had planned to sweep the whites from the North- 
west. Tecumseh, and his brother The Prophet, 
had conceived a more daring plot — to unite all 
the tribes, North and South, and swoop down 
upon the settlements at one time. Harrison's 
victory gave the Northwest to new settlers. For 
the settler in the Southwest Jackson performed 
a similar service. His campaigns left a trail of 
Indian blood. Henceforth no tribe dared com- 
mit hostilities east of the great river. Harrison 
and Jackson had won a popularity surpassing 

232 




SHOWING CIVIL DIVISIONS 
,AND DISTRIBUTION OF POPULATION 



The Indian Wars 

that of Washington or Franklin. When the war 
of 1812 was over, and the treaty of Ghent was 
signed, and the country could calmly reflect on 
its gains and losses, the victories of Harrison and 
Jackson, which opened the West to settlement, 
outweighed, in the opinion of the people living in 
the great valley, all the victories of the Americans 
on the sea. The popularity of the two soldiers 
took deep root in public sentiment, and, growing 
stronger as the years displayed prosperous com- 
monwealths as the fruit of their victories, at last 
culminated in the election of the " Hero of New 
Orleans," and, later, the " Hero of Tippecanoe,"* 
to the Presidency. 

By a provision of the national Constitution, a 
census of the people is taken every ten years. The 
movement of the frontier westward has thus been 
regularly recorded. Its position from decade to 
decade suggests the waves of some mighty sea, each 
in succession leaping further to the West. Every 
wave has ingulfed once powerful tribes. From 
frontier to frontier stretches a succession of battle- 
fields. Each decade has had its Indian wars, its 
victories, and its popular heroes. Harrison and 
Jackson were the first of their kind. Within ten 
years of their victories, the West stretched far 
away beyond the Mississippi ; many of the tribes 
with whom they fought were transferred to the 
Indian country, and an ample region east of the 

* For typical resolutions on General Harrison, see those of the 
Kentucky Legislature, January 13, 1812. 

2 33 



Constitutional History of the American People 

river was opened to peaceful settlement. Popula- 
tion continued to converge upon St. Louis, even 
after these victories on the Thames and the Ala- 
bama. Within five years of the battle of Tippe- 
canoe, a population poured into Indiana sufficient 
to ask for admission as a State. Congress made 
a grant of school-lands equally generous with that 
to Ohio, and appropriated an entire township ex- 
clusively for the support of higher education in 
" a seminary for learning" — the beginning of ap- 
propriations of land for State universities. Like 
the offer to Ohio, this one to Indiana was subject 
to the will of the convention. The constitution 
adopted was the first in the country to make it 
obligatory on the Legislature "to provide by law 
for a genera] system of education, ascending in 
a regular graduation from township schools to a 
State university, wherein tuition shall be gratis, 
and equally open to all." 

In 1817 the Territory of Mississippi was divided. 
The eastern portion was organized as the Terri- 
tory of Alabama, and the people of the western 
portion were authorized to form a State govern- 
ment — republican in form, and complying with 
that part of the Ordinance of 1787 applicable to 
the Southwest. This meant a slave constitution. 
The free navigation of the Mississippi was guar- 
anteed to all the inhabitants of the United States. 
The State was admitted on the 10th of Decem- 
ber. Two years and a day later Alabama was ad- 
mitted on the same terms. In this State school- 
lands were reserved as in Ohio. 

234 



Forebodings of the Straggle for Secession 

Similar civil changes had meanwhile gone on 
in the Northwest. In 1818 the people of Illinois 
were authorized to form a constitution. A land- 
grant was made like that to Indiana. The portion 
of the Territory north of the present boundary was 
attached to Michigan. On the 3d of December 
the State was admitted. Thus the four new States 
came into the Union in pairs — Indiana and Mis- 
sissippi, Illinois and Alabama. 

Within five years from the organization of the 
Territory of Orleans its people asked for admis- 
sion, and Congress acceded by passing an enabling 
act in 181 1. The conditions imposed on Missis- 
sippi and Alabama were renewed and complied 
with, and the State of Louisiana admitted on the 
eighth day of April following. It was the first 
State in the recent acquisition, and its admission 
precipitated an ominous debate, in which there 
were strong assertions of State sovereignty and 
some mutterings of secession. A few days later 
all territory north of the new State was organized 
as Missouri. Its Territorial government was more 
liberal than that given to the Northwest twenty- 
five years before. Members of the House were 
required to be freeholders — a qualification which, 
in practice, though not by law, was exacted of the 
Territorial officials generally. After 18 16 the ses- 
sions of the Legislature were made biennial — an in- 
novation in Territorial matters. 

The people of the nine counties of Massachusetts 
constituting the District of Maine had been agitat- 
ing separation for several years, when, in 18 16, de- 

235 



Constitutional History of the American People 

sire took the form of a convention, which assem- 
bled on September 29th, at Brunswick. Most of 
the Federalists were opposed to separation. Three 
years of political agitation followed ; Massachusetts 
assented to separation; a convention assembled at 
Portland and submitted a constitution to the elec- 
tors of Maine. It was ratified, was approved by 
Massachusetts, and on the 3d of March, 1820, the 
State was admitted. 

While the people in the Northwest were making 
these changes, those in the Southwest were similar- 
ly engaged. Congress organized the Territory of 
Arkansas in 181 9, with a government like that of 
Missouri. To induce immigration, bounty lands 
for military service during the war of 18 12 which 
were still held by the original patentees or their 
heirs, were exempted from taxation for three years 
from date of issue. The laws of Missouri were ex- 
tended over Arkansas. 

Georgia, Alabama, Mississippi, and Louisiana 
had long been complaining of the escape of run- 
away slaves into the Floridas. Partly because of 
the weakness of Spain, but principally in compli- 
ance with the wishes of the pro-slavery element in 
the Union, Congress early in 181 1 passed a res- 
olution that the United States could not, without 
serious disquietude, see any part of the Floridas 
pass into the hands of a foreign power, and on the 
same day authorized the President to take posses- 
sion of East Florida. A month later it authorized 
him to take possession of West Florida. Though 
the peninsula was thus converted into a military 

236 



Spain Sells Florida 

possession of the United States, Congress declared 
that it should be subject to future negotiation. No 
act of Congress was ever more popular along the 
Southern frontier than this one. Remonstrance 
by Spain was useless. It could do no more than 
sell a possession already practically in permanent 
military possession of the United States. On the 
twenty-second day of February, 1819, a treaty was 
made by which Spain relinquished all claim to the 
Floridas and to the Louisiana country. The con- 
sideration was five millions of dollars and the as- 
sumption of certain claims, which proved event- 
ually to amount to a million and a half more. It 
was this treaty that defined the western boundaries 
of the Louisiana country ; but influences were al- 
ready at work which, in a quarter of a century, 
left the sea- coast of Florida the only part of our 
national boundary fixed by this treaty. Portions 
of it now constitute the boundaries, in part, of 
thirteen commonwealths. 

St. Louis, the principal city on the Mississippi, 
lay at the confluence of streams of population 
from the East. Before the Territory of Missouri 
was in its eighth year its people were seeking ad- 
mission. On the 6th of March, 1820, Congress 
passed an enabling act, with a more generous 
grant of lands for school purposes than that made 
to Indiana. Four sections were granted as a site 
for the seat of government — the first grant of the 
kind. A condition found in later enabling acts 
was for the first time imposed — that the constitu- 
tion of the State be republican in form, " and not 

237 



Constitutional History of the American People 

repugnant to the Constitution of the United 
States." It was with the latter part of this con- 
dition that the Missouri constitution conflicted 
and for a time delayed the admission of the State. 
For the first time the question was raised whether 
slavery should be permitted west of the Missis- 
sippi and north of Louisiana. It was settled by 
applying the sixth article of the Ordinance of 
1787 to the portion north of 36 30', and admitting 
Missouri with a pro-slavery constitution.* As orig- 
inally defined, the western boundary of the State 
was a meridian line, and did not include the tri- 
angle in the northwest, about equal in area to 
Delaware. This was annexed to Missouri in 
1836, in defiance of the compromise of 1820. 

With the organization of the Territory of Flor- 
ida, in 1822, the public domain passed wholly into 
the hands of civil authority. In less than forty 
years from the day when the independence of the 
United States was recognized, population had 
overspread more than a thousand miles of the 
Western country. Nine commonwealths had arisen 
in a region which, in 1 781, was in the possession 
of hostile tribes. The West was now greater than 
the East. New issues had arisen in the nation. 
New States and old were confronted by new 
social and economic problems, in the settlement 



* On the 26th of June, 1821, by a "solemn public act," the 
Missouri Legislature complied with the conditions of the en- 
abling act, that the objectionable clauses in the State constitu- 
tion should never be construed so as to violate rights guaranteed 
by the Constitution of the United States. 

238 



The Domination of Western Ideas 

of which the constitutions of the eighteenth century 
gave little help. Consequently the constitutions 
of the new commonwealths contained innovations, 
chief of which were changes in the basis of rep- 
resentation, in the franchise, in the method of 
securing public officials, in provisions for public 
schools, colleges, and universities, and in the dis- 
tribution of the functions of government among 
the departments. The constitutions, like the\ 
people of the new States, were more democratic] 
in character than those of the East. The new 
organic laws of the West were a wave of consti- 
tutions. Those of the eighteenth century com- 
prised the first, these the second, on the great sea 
of American democracy. The influence of ideas 
dominant in the West was reflected and felt in 
New York and Massachusetts, in Connecticut and 
New Jersey, in Maryland and Georgia. These 
older States were discussing, if not adopting, re- 
forms in the basis and the apportionment of rep- 
resentation, reforms in the franchise, and, to a 
less extent, in the organization of the adminis- 
trative, or, as it may now be called, the civil ser- 
vice. Government by property was giving place 
to government by persons. 



CHAPTER IX 
FROM THE ALLEGHANIES TO THE MISSISSIPPI 

At the opening of the new century the frontier 
advancing westward was along the Ohio River.* 
The greater part of the original States was in 
private ownership. From the shores of Ontario 
and Erie a new zone of occupation extended south- 
westward to the country of the Creeks and Chero- 
kees — a new world of isolated settlements, found 
along the great streams flowing into the Ohio, 
along the south shore of the two great lakes, and 
in the valleys of Kentucky and Tennessee. But 
throughout this new region the fear of straggling 
half-breeds and remnants of once powerful tribes 
made the new West a vast agricultural camp. St. 
Louis stood at the outpost of civilization. Peace 
with the United States, France, and Spain con- 
tributed to make it a centre of population as 
well as a frontier trading-post. It was the one 
town on the continent which served the func- 
tion of the middle -man with the people of the 
States, the French, Spaniards, and Mexicans on 
the south, and the unknown Indian tribes of the 

* The principal authorities for this chapter are the treaties, 
the statutes at large referred to, and the meagre records of the 
constitutional conventions. 

240 



The Control of the Channels of Commerce 

yet undiscovered West. It stood near the con- 
fluence of the three great rivers of the country — 
the Ohio, the Mississippi, and the Missouri — the 
confluence also of civilization and savagery. Three 
hundred miles to the south, another and an older 
town, New Orleans, laid tribute on all that came 
from the upper country; and this meant the sur- 
plus product of the United States west of the 
Alleghanies. A less discerning mind than Jeffer- 
son's could see that the fate of the Western coun- 
try was in the hands of New Orleans. The phrase 
"manifest destiny" had not yet been invented as 
the apology for the acquisition of new territory, 
but the thought was embodied in Jefferson's dic- 
tum, that the power possessing New Orleans was 
the natural enemy of the United States. It was 
a prescient idea, and one that the wayfaring man 
might not have expected to find in a republic of 
only twenty -five years' standing, and not with- 
out signs of falling. Why more land when more 
than half the public domain was yet a wilder- 
ness ? Why the isle of Orleans when popula- 
tion had barely reached the Altamaha, four hun- 
dred miles to the east, or the Cumberland, three 
hundred to the north ? We all know the reason — 
it has been written in the history of all nations — 
that the power is supreme which regulates com- 
merce and controls the highways of trade. Al- 
though the greater part of the people of the United 
States inhabited the Atlantic slope, the future of 
the republic did not rest with them. More than 
half the country lay in the valley of the Missis- 
l— q 241 



Constitutional History of the American People 

sippi ; on this yet unoccupied portion rested the 
fate of the Union. Trade and commerce follow 
lines of least resistance. The mountains which 
divided the people of the coast from the people of 
the great valley might prove a greater obstacle to 
" a more perfect union " than the delusion of fiat 
money and the jealousy of the State sovereignties 
had been at the time of the ratification of the 
Constitution. In the last analysis union rests on 
morality and industrial association, and the gen- 
eral welfare means a true political economy. Thus 
the fate of the republic depended on the course 
of streams and the trend of mountains, as well 
as on Congress and the Legislatures. Had the 
Rocky Mountains run parallel with the Missis- 
sippi at twenty miles to the west, it is doubtful 
whether the United States would ever have ex- 
tended beyond its original limits and the penin- 
sula of Florida. The acquisition of the Louisiana 
country ranks in importance with the Declaration 
of Independence — for it made room for democracy 
in America. 

With nations, as with individuals, it is the for- 
ward look that stimulates. Too much history, like 
too much introspection, chills the spirit and crip- 
ples action. Thus the thought of an energetic 
people is of their outposts and frontier, and the 
history of these is the history of civilization. When 
the new century opened the outposts of the re- 
public were at Buffalo, Erie, Detroit, Mackinaw, 
Chicago, Green Bay, Prairie du Chien, St. Louis, 
and Orleans — names, it is true, seldom heard in 

242 



Concerning the Cession of Louisiana 

the East then, but to the statesmen of the day the 
subject of diplomacy, the signs of the times, the 
vanguard of democracy. 

Louisiana was almost an unknown land. Not 
until sixteen years after its purchase, when Florida 
was acquired, was there even a rude definition 
of the boundaries, for no accurate maps existed. 
No man knew the true course of the Rio Grande 
or of the Rocky Mountains, for there were several 
great rivers and many mountain ranges, any of 
which might be the boundary. Fortunately for 
the republic, the western boundaries were at the 
edge of the world, and not likely, it was thought, 
to raise diplomatic questions for centuries. 

Of greater domestic interest were the political 
articles of the treaty. The United States guaranteed 
the inhabitants of Louisiana the protection of their 
liberty, property, and religion, and this guarantee 
of property rights was soon applied in a way that 
determined the real importance of the acquisition 
and its effect on the destiny of the country. If 
property included slaves, what was the national 
significance of the guarantee ? What effect on the 
commonwealths of the future ? Was the fate of 
freedom in the States to be formed within the 
new acquisition to be determined by the property 
rights of a few thousand people living in Louisiana 
at the time of the treaty ? 

Nor were these the only civil problems latent in 
the acquisition. What effect would the great Or- 
dinance of 1 787 now have ? If slaves were property — 
and, by the treaty, slavery was to prevail through- 

243 



1 



Constitutional History of the American People 

out the Louisiana country — was not the republic 
thereby converted forever into a slave-holding com- 
munity? The Ordinance excluded slavery from 
the territory northwest of the Ohio, but at the 
same time included it southwest. 

Slavery did not exist in New Hampshire, Ver- 
mont, and Massachusetts ; but elsewhere, in every 
State, and in the Northwest Territory, there were 
slaves. By the Ordinance it became unlawful in 
that Territory after 1800, but the year came and 
went with no change in the condition of the ne- 
groes within its boundary. The white people in 
the Territory were not enthusiastic to apply the 
Ordinance. The year of the acquisition of Lou- 
isiana witnessed the admission of Ohio* with a 
constitution forbidding slavery, and it also saw 
the persistent efforts of the inhabitants of Indiana 
to persuade Congress to repeal, or suspend, the 
Ordinance. Their petition was answered by the 
unanimous report of the committee, of which John 
Randolph was chairman. Slave labor would be 
unprofitable in the Northwest ; slavery would 
make the frontier less secure. But defeat did not 
cause petitions to cease. In the following year 
another committee reported favorably, but the 
House took no action. Two years later another 
committee made a favorable report, on the ground 
that the repeal of the prohibitory clause was 
almost universally desired in the Territory; that 
the suspension of the clause would stimulate 

* February 19, 1803. 



Slavery in the Northwest Territory 

immigration, and that slave-owners would be free 
to move to Indiana if they chose. The suspen- 
sion would also improve the condition of the 
slaves. The more they were scattered, the better 
care they received from their masters, as experi- 
ence proved that the comfort of slaves was in 
proportion to the smallness of their number — an 
argument to be made much of by Madison, and re- 
peated by the friends of slavery extension in 1820. 
The House, however, took no action. Again, in 
1807, a committee reported favorably, and its opin- 
ion was reinforced by a letter from William Henry 
Harrison, Governor of the Territory. A new argu- 
ment was presented. Though inexpedient to force 
the population of the Territory, it was desirable 
to connect its scattered settlements, and place it on 
equal footing with the different States. Indiana 
was so far inland it was improbable that slaves 
could ever become so numerous as to endanger 
the peace of the country. The Territory should 
be open freely to the current of immigration. Sus- 
pension of the clause, it was now claimed, did not 
involve the abstract question of freedom or sla- 
very, because slavery existed in different parts of 
the Union. Rather, the suspension would amelio- 
rate the condition of the slaves, because it would 
merely authorize their removal from other States. 
But the House took no action. The Indiana peti- 
tion came as a resolution of the Territorial Legis- 
lature. Private judgment was thus strengthened 
by the official act of the legislative and executive. 
In January, 1808, the whole matter came before 

245 



1 



Constitutional History of the American People 

the Senate, but its committee reported the pro- 
posed change inexpedient, and Congress took no 
further action. Thus, by a coincidence, the terri- 
tory northwest of the Ohio was secured to freedom 
in the year when, by the terms of the national 
Constitution, Congress was free to prohibit the 
African slave-trade. 

The fate of the Indiana memorial, settled five 
years after the acquisition of Louisiana, may now 
be said to have been an augury of the fate of 
slavery in the new domain, but there is slight evi- 
dence that the action of Congress was so con- 
strued at the time. The name Louisiana, then, as 
now, was connected, in popular thought, with the 
southernmost part of the purchase. There was 
no objection to the acquisition because of the ex- 
tension of slavery. Objection was of the kind ex- 
pressed in the federal convention of 1787, when 
the contingency of new States in the West was 
discussed — that they would multiply and out-vote 
the East, and therefore ought not to be created. 
Moreover, the Constitution made no provisions 
for the acquisition of territory. These two ob- 
jections, involving questions of federal relations 
rather than of slavery, engrossed what public at- 
tention was given to the matter. The article of the 
treaty by which the Constitution of the United 
States was soon invoked as guaranteeing the right 
of property in man, was generally unknown or 
overlooked. Was not the acquisition a South- 
ern and Western question, after all ? Quincy and 
the New England Federalists, of course, object- 

246 



Louisiana and Orleans as Territories 

ed,* but would they not object, as they ever had 
objected, to whatever the South and West might 
ask ? Times had changed ; henceforth the West 
should outweigh a black cockade., Let the Fed- 
eralists remember that Jefferson, the man of the 
people, was President. At last the West was to 
have its rights, and it gathered more fervently 
than ever beneath the banner of that new and 
powerful party described by its founder as " inclin- 
ing to the legislative powers." 

Ten days after the treaty was proclaimed Con- 
gress authorized the President to take possession 
of the new country, and it was erected into two 
Territories — Louisiana and Orleans. The fugitive- 
slave law of 1793, and the laws respecting the slave- 
trade, were specially mentioned as extended to the 
new Territories. On the 2d of March Orleans 
was provided with a permanent government, and 
on the next day Louisiana. The form became 
the precedent for later Territories in the South. 
Within five years from the organization of Orleans 
its population had sufficiently increased to au- 
thorize the formation of a State government. By 
the enabling act of February 20, 181 1, the electors 
were empowered to choose delegates to a constitu- 
tional convention. Its work was completed eleven 
months later. The act prescribed several condi- 
tions, suggested in part by a clause in the treaty 
of 1803. The constitution should contain the 
fundamental principle of civil and religious liberty, 

* See Josiah Quincy's speech in the House, January 14, 181 1. 

247 






Constitutional History of the American People 

should be republican in form, and consistent with 
the national Constitution. Satisfied with the plan 
of government submitted, Congress admitted the 
State on the 8th of April, and, six days later, en- 
larged its boundaries. 

The greater part of the Louisiana purchase re- 
mained as yet unorganized. To the portion north 
of the new State, Congress, on the 4th of June, 
gave a Territorial organization and the name Mis- 
souri.. The government departed slightly from 
precedent in prescribing a biennial election of 
members of the House. These w r ere required to 
be freeholders. In 18 16 the sessions of the Legis- 
lature were made biennial — the first application to 
a Territory of a reform already in progress in the 
States. The laws of Louisiana were extended 
over the new Missouri Territory, except any parts 
of them inconsistent with the act creating the 
Territory. Thus the early legislation of Missouri 
was, in part, ingrafted on the civil law. 

Georgia had recently ceded to the United States 
all the region west of her present boundary — the 
result of an amicable agreement between the State 
and national commissioners, ratified on the 16th 
of June, 1802.* The United States agreed to pay 
one and a quarter millions of dollars, and also to 
extinguish the Indian title within the State and 
over the greater portion of the ceded area. The 
new Territory was to be admitted as a State as soon 

* For papers respecting this cession, see Donaldson's Public 
Domain, pp. 79-81. Forty -seventh Congress, second session; 
House of Representatives, Miscellaneous Document 45, Part 4. 

248 



The Progress of State- Making 

as it contained sixty thousand people, or sooner, 
if Congress thought expedient, and the United 
States agreed that the Ordinance of 1787 should 
apply to it, except the article forbidding slavery. 
This cession enabled Congress to extend the Terri- 
tory of Mississippi northward to the Tennessee 
line. The right to vote was limited to free white 
males above the age of twenty-five, citizens of the 
United States who were residents of the Territory 
one year, provided they owned fifty acres of land 
in the United States, or a town lot worth one 
thousand dollars within the Territory. 

Indiana was divided in 1805, and to the por- 
tion comprising the southern peninsula the name 
Michigan was given, with Detroit as the capital. 
Again, four years later, the Territory was divided, 
and the western part, with capital at Kaskaskia, 
was called Illinois. 

Indiana now sought admission, and on the 19th 
of April, 181 6, Congress authorized its people to 
elect delegates to a constitutional convention, lim- 
iting the choice to white male citizens of the United 
States, residents of the Territory for one year, who 
had paid a county or Territorial tax. On the 29th 
of June of the following year this convention as- 
sembled at Corydon, and completed a constitution, 
which was ratified by the electors and approved 
by Congress. On the nth of December the 
State was admitted. 

In 18 1 2 the Territory of Mississippi was en- 
larged so as to include the region east of the 
Pearl River, west of the Perdido, and south to the 

249 



Constitutional History of the American People 

thirty-first degree of latitude. Within five years 
the inhabitants applied for admission. On the ist 
of March, 1817, Congress passed the act neces- 
sary for admission, and the electors in the thirteen 
counties chose forty -eight delegates, who assem- 
bled at Washington, and, after six weeks' labor, 
completed a constitution. Under this the State 
was admitted, on the 10th of December. A con- 
dition of the enabling act required the constitu- 
tion to be republican in form, and in conformity 
with as much of the Ordinance of 1787 as was 
applicable to the Southwest. The establishment 
of slavery was, therefore, a condition of admission. 
An enabling act for Illinois passed Congress on 
the 18th of April, 1818; a constitutional conven- 
tion met at Kaskaskia on the 26th of August, and 
its work was approved by the electors and by 
Congress. By resolution, the State was admitted 
on the 3d of December. 

Alabama had long been a land of promise 
when, in 181 7, it was created a Territory. It was 
a fair and fertile country, in which the United 
States had guaranteed to extinguish the Indian 
title. A tide of immigration poured in from the 
adjoining States, especially from Tennessee and 
Kentucky. In two years its people sought admis- 
sion to the Union, and Congress responded by 
the act of the 2d of March, 18 19, authorizing them 
to form a constitution and State government sub- 
ject to the condition imposed on Mississippi with 
respect to the Ordinance of 1787. The constitu- 
tional convention completed its work on the 2d 

250 



Extension of the Ordinance of ij8j 

of August. On the 14th of December, Alabama 
became the twenty - second State in the Union, 
with the suggestive distinction of having been a 
Territory for a briefer period than any other 
American commonwealth. 

Arkansas was given a Territorial organization 
in 1 8 19, after the form of that of Missouri. As 
an inducement to immigration, and in response 
to public sentiment in the South, bounty lands 
granted within the Territory for military services 
during the war of 181 2, and still held by the orig- 
inal patentees or their heirs, were exempted from 
taxation for three years from date of the patent. 
In 1820 the changes in the form of the Missouri 
government were declared by Congress to apply 
equally to Arkansas. 

The enabling act for Missouri passed on the 
6th o f March, 1820, and a constitutional conven- 
tion was elected early in May. Congress im- 
posed the usual conditions — that the new consti- 
tution be republican in form and not repugnant 
to the Constitution of the United States, but the 
last section of the enabling act prescribed a new 
condition, destined to become epoch-making in 
the history of the country. In all that Territory 
ceded by France lying north of 36 30', not in- 
cluded within the limits of the proposed State of 
Missouri, slavery, or involuntary servitude, other 
than as a punishment for crime, was forever pro- 
hibited, but fugitive slaves found there might be 
lawfully reclaimed. Thus the Ordinance of 1787, 
as applied north of the Ohio River, was extended 

251 



Constitutional History of the American People 

over the Louisiana purchase, north and west of 
the State of Missouri, and the greater part of the 
republic was thereby made free soil. 

From the 12th of June till the 19th of July the 
convention was busy at St. Louis in forming a 
constitution for the new State. Among other or- 
dinances it passed one formally declaring the as- 
sent of the people of the State of Missouri to the 
conditions of the enabling act. The new consti- 
tution was approved by the people, who, at the 
time of voting approval, had elected a State ticket 
and practically established a State government. 
The enabling act had provoked the first exhaust- 
ive discussion of slavery in Congress. The act 
was itself a compromise. As first submitted to 
Congress, the constitution of the new State di- 
rected its Legislature, as soon as possible, to ex- 
clude free persons of color from the State. The 
clause at once, and for the first time, raised the 
question whether such a provision conflicted with 
the national Constitution. Were these citizens 
of the United States ? The controversy threat- 
ened to prevent the admission of the State. New 
York, and other States in which these persons 
might become electors, saw in the exclusion a 
direct violation of the rights of their citizens 
under the Constitution. By a "solemn act" 
the Missouri Legislature promised that the ob- 
jectionable clause should never be applied to 
citizens from another State, and, on the 10th of 
August, 1 82 1, President Monroe, who had been 
authorized to admit the State upon receipt 

252 



Massachusetts Makes a Constitution 

of such a promise, admitted it by proclama- 
tion. 

While the Missouri Compromise was pending, 
the people of Massachusetts residing in the District 
of Maine, after several unsuccessful attempts to or- 
ganize a separate State government, completed a 
constitution on the 29th of October, 18 19, in con- 
vention at Portland.* Massachusetts had given its 
formal assent in June. The constitution was rati- 
fied by the electors on the 6th of December ; Mas- 
sachusetts made a formal cession of title to the Dis- 
trict on the 25th of February, 1820, and on the 3d 
of March the State was admitted. At this time 
the line of the frontier extended four thousand one 
hundred miles, and the settled area was nearly five 
hundred and nine thousand square miles. Popu- 
lation was rapidly increasing and now numbered 
nearly ten millions.! Since the opening of the 
century the centre of population had moved west- 
ward fifty miles. More than one-sixth of the popu- 
lation was in slavery4 Though the urban popu- 
lation was increasing, less than half a million souls 
were to be found in cities. § New York, the largest, 

* The Debates and Journal of the Constitutional Convention 
of the State of Maine, 1819-20, and Amendments subsequently 
made to the Constitution. [Edited by Charles E. Nash.] Au- 
gusta: Maine Farmers' Almanac Press, 1894. 

f 9,633,822. % 1,538,022. 

§ Alexandria, District of Columbia, 8218; Norfolk, Virginia, 
8478 ; Portland, Maine, 8581 ; Cincinnati, Ohio, 9642 ; Provi- 
dence, Rhode Island, 11,767; Richmond, Virginia, 12,067; Al- 
bany, New York, 12,630; Salem, Massachusetts, 12,731; Wash- 
ington, District of Columbia, 13,247 ; Southwark, Pennsylvania, 
14,713; Northern Liberties, Pennsylvania, 19,678; Charleston, 

2 53 



Constitutional History of the American People 

contained scarcely one hundred and twenty -five 
thousand; Philadelphia and Baltimore, each, half 
as many ; Boston less than one-third. New Or- 
leans was larger than Charleston. Territorial sub- 
divisions indicated what movements in population 
were in progress, and a great body of immigrants 
was impatiently awaiting the extinguishment of the 
Indian title in the Northwest and the Southwest. 
As a refuge for fugitive slaves the Floridas had 
long been a cause of complaint to the States along 
the Southern border. As the peninsula belonged 
to a weak nation, there was some hope that the 
cause would cease. Partly on this account, but 
principally in compliance with the aggressive pol- 
icy of slavocracy, Congress, on the 15th of Janu- 
ary, 181 1, by resolution declared that the United 
States could not without serious disquietude see 
any part of the Floridas pass into the hands of a 
foreign power, and that a due regard for the safety 
of the United States compelled them to occupy 
the territory — subject to future negotiation. On 
the same day the President was authorized to take 
possession of East Florida — the country south of 
Georgia and Mississippi Territory and east of the 
Perdido — and, on the 1 2th of February, to take pos- 
session of the remainder of the country then called 
West Florida. The peninsula thus became a mil- 
itary possession of the United States. This, too, 

South Carolina, 24,780; New Orleans, Louisiana, 27,176; Bos- 
ton, Massachusetts, 43,298 ; Baltimore, Maryland, 62,738 ; Phila- 
delphia, Pennsylvania, 63,802; New York, 123,706. The urban 
population aggregated 475,135. 

254 



Pushing the Republic Westward 

was a Southern question, as the public thought, 
and the unprecedented act of Congress met with 
general approval. Undoubtedly the peninsula 
would have been held by the United States suc- 
cessfully had war followed, but the treaty of ces- 
sion, concluded on the 2 2d of February, 1819,* 
brought matters to an amicable settlement. Of 
greatest importance, as time passed, was the clause 
in the treaty defining the western boundary of a 
portion of the Louisiana purchase. There were 
those who asserted, and John Quincy Adams was 
among the number, that the United States had ac- 
quired a just claim as far west as the Rio Grande 
— an idea which twenty-six years later was revived 
in the demand for the " reannexation " of Texas. 
Until March 30, 1822, the Floridas continued un- 
der a military government, responsible to the Presi- 
dent. On that day they were united under a Ter- 
ritorial organization of the usual form, but the lack 
of roads and waterways between the eastern and 
western parts compelled a departure from the usu- 
al judicial organization. Two superior courts were 
established — one for the eastern and one for the 
western part. Twenty-two States and two Terri- 
tories were now organized east of the Mississippi, 
and, to the west, one Territory and two States. 

A change in Territorial government, in the nat- 
ure of a reform, was made by the act of Congress 
of February 5, 1825, affecting Michigan. Its Gov- 
ernor and Legislative Council were empowered to 

* Treaties and Conventions, pp. 1016-1023. 
255 



Constitutional History of the American People 

divide the Territory into townships, and to incor- 
porate any of them. Henceforth county officers 
were to be elected by popular vote. These were im- 
portant steps towards independent and responsible 
local government. It was an application of civil no- 
tions long prevalent in New England and New York, 
but now for the first time applied by Congress to a 
Territory. Its appearance in Michigan is explained 
by the nativity of the people, who, for the most 
part, had emigrated from New York and New 
England. The reform thus early introduced into 
Michigan was a sign of the times, and particularly 
in the North. The laws on local government soon 
after passed by the Michigan Legislature became 
the nucleus of articles on local government, taxa- 
tion, and finance which, nearly twenty years later, 
this State was the first to insert in a written con- 
stitution.* 

Few of the State boundaries were at this time 
settled, and scarcely a session of a Legislature 
passed without some act or resolution bearing on 
the disputed question. The greater part of the 
national boundaries was also unsettled. Save the 
sea-line, along the Atlantic and the Gulf, the 
boundaries of the country were yet diplomatic 
problems. The treaty with Great Britain, in 
1783,1 had provided for the appointment of com- 
missioners to settle the entire boundary line be- 
tween the two countries, and the treaty of Ghent, 
in 18 144 made a more definite provision for a 

* Of 1850. f Treaties and Conventions, pp. 375~379- 

X Id., pp. 399-405. 

256 



Boundary Commissions and Their Work 

commission. On the 18th of January, 1822, the 
commissioners appointed under the sixth article 
of this treaty gave their decision at Utica,* and 
thus established the boundary from Northern New 
York through the St. Lawrence and the great lakes 
to the Lake of the Woods. The next portion set- 
tled was the continuation of the line to the Rocky 
Mountains. A convention, ratified at London on 
the 2d of April, 1828,! related to the further set- 
tlement of the boundary towards the Pacific coast, 
and it was agreed that the United States and Great 
Britain should occupy the Oregon country in com- 
mon, but that joint occupation should cease at any 
time, on twelve months' notice to the other party, 
after the 20th of October, 1828. Thus the Ore- 
gon question was indefinitely postponed. The 
treaty of Ghent also provided for the appointment 
of commissioners to settle the northeastern boun- 
dary, and, by agreement of the same day, the com- 
mission that had agreed to the Oregon occupation 
was empowered to act, but, finding it impossible to 
reach a satisfactory decision, they agreed that the 
matter in dispute should be submitted to an ar- 
biter whose decision should be conclusive. These 
negotiations paved the way for an amicable settle- 
ment of the northeastern and northwestern boun- 
daries, fifteen years later.:j: 

* Treaties and Conventions, pp. 407-410. 

t Id., pp. 429-43 2 - 

I Before this settlement was reached, Maine and Massachu- 
setts, the States chiefly affected by the decision, passed a series 
of resolutions which constitute an important chapter in the his- 
tory of State sovereignty and federal relations. See the resolu- 

I.— R 257 



Constitutional History of the American People 

At the time of the acquisition of Florida, and 
of the admission of Maine and Missouri, Texas, 
hitherto a Mexican province, revolted and declared 
itself a republic. On the 12th of January, 1828, a 
boundary treaty was concluded between Texas 
and the United States, but political events soon 
obscured both the treaty and the boundary, and the 
treaty proved only a prelude to an aggressive pro- 
slavery policy directed to the acquisition both of 
Texas and California. The issues of this policy 
divided the country, and called forth resolutions 
from many of the State Legislatures. 

The organization of Territories and the admis- 
sion of States kept pace with the movements and 
the increase of population. At the close of the 
third decade of the century the line of the fron- 
tier extended five thousand three hundred miles, 
and the settled area comprised nearly six hundred 
and thirty -three thousand square miles. The 
population numbered about thirteen millions,* 
nearly all of whom were native-born. Two and 
one -third millions were of the African race, the 
third of a million being free persons of color. The 
most significant change in population was shown 
in the increase in the number and size of cities. 
Nearly nine hundred thousand people t were now 
living in cities, each having a population of eight 
thousand or more — and thirty -two towns ranked 
as cities. The five largest were New York, Balti- 

tions of the Legislature of Maine, January 19, 1832, published 
with the laws of that year. See Note, p. 340. 

* 12,866,020. . 1 864,509. 

258 



The Beginning of Chicago 

more, Philadelphia, Boston, and New Orleans. 
The increase in city population signified that the 
country was changing from one of agriculture to 
one of manufacturing pursuits. City government 
as yet scarcely existed. State constitutions made 
no direct provision for it, as, at the time of their 
formation, there were few cities. Cities and towns 
were, with few exceptions, a part of the govern- 
ment of the township or county in which they 
were located. But the rapid increase of the city 
vote soon led to demands for new apportionments 
of representation. This signified that in every 
State containing a large city two political inter- 
ests — the rural and the urban — were struggling to 
control legislation. 

On the 27th of September, 1830, the founda- 
tions were laid of a city destined in two genera- 
tions to become the second most populous on the 
continent. On that day three hundred and twenty 
acres, surveyed as in-lots and out-lots at Chicago, 
were offered for sale, and about one-half of the in- 
lots were sold for nearly seven thousand dollars in 
cash. A person present at the sale recorded at 
the time that there was not then a freeholder 
within a hundred miles of the place.* Chicago 

* Extract from manuscript letter : 

Chicago Illinoise October 13th 1830. 
Thomas Forster Esquire — 

* * * this section where the town of Chicago is laid out is No. 9, the 
south side of it, 320 acres, was laid out in Inlots and out-lots and sold for 
the use of the canal the sale comenced on 27 ult. about the one-half of the 
Inlots were sold, and a new peaces of land the commissioners Received 
upwardes of $7000 in cash here for what lots were sold, before said sale 
there was not one freeholder within 100 miles of this place that held one 

259 



Constitutional History of the American People 

had been for centuries the rendezvous of the Indian 
tribes ; it was known to the early French explor- 
ers, and was laid down on their maps as early as 



foot of land, the Engineers of the united states Mr. Nicholson and Mr. 
Gyon has been here all most all season they surveyed the harbour and fixed 
the place to open the bar it is 400 yds from 15 feet water in the lake to 
20 feet water in Chicago River about 100 yds wide & caries its depth & 
width for miles in the town the River forks, and Each branch is as large as 
the whole branch or River and as deep the town is laid out part on Each 
side of the River to the forks which is East and west more than half a 
mile then one branch comes from the north and the other from the south 
at right angles and part of the town is in the forks — and about ^ of the 
lots sold is about Equal in all the 3 parts of the town Each branch 100 
yds wide there can be no beter harbour if the barr is opened and any ves- 
sel can turn Round that sales the lakes — within it Mr. Nicholson has been 
sick and could do no buisiness and is now gone to the south about 200 
miles for his health Mr. Gyon the united states Engineer & also an 
Engineer Imployed by the state from the state of Kentucky near the falls 
they have been out with a parol of solders from the Garrison for hands 
about 14 days Examining the country &c and not on stake set for the canal 
— some of the canal commissioners are here wating patiently to hear, the 
result of the Exploring of the two Engineers one for the state the other 
for the U S — It is very proble that the canal will be comenced next spring 
the commissioners inform me that they will set out this fall 10 miles for 
Excuvation but I have my doubts about it. there is nothing but the fear 
of the U. S. taking advantage of the time of comencingthe canal, to Hold 
the land granted by congress. 
Sir. 

I have given you a history of some parts of this Country having travled 
some thrug it and meeting with numbers of gentlemen from different parts 
of the state of the first Information, and of talents, altho I was not in a 
good state of health part I have Indeavored to gether all the Information 
in my power for the time, — on last Saturday the Indians drew at this place 
their annuity great preperations was made by numerous traders and mar- 
chants &c by bulding huts some with logs some in tents & other in bord 
shanties, but from the best Information I could gether the Cheafs caried 
off above one third of the cash to their vilages to make the dividend at 
home with their tribes but the traders will follow and pick it up from 
them at home but the traders all came far short if their Expectations*** 
Very Respectfuly I Remain 
your — 

Most obedient Humble Srvt. 

James Harrington. 
260 



95 9» 




SHOWING CtVIL DIVISIONS 
AND DISTRIBUTION OF POPULATION 



Indians Bar the Way 

1703.* The time of its founding may be said to 
mark the beginning of the municipal period of 
American democracy. At the adoption of the 
national Constitution not more than three people 
in a hundred lived in cities; at the time of the 
founding of Chicago the number had doubled. 

Nearly all of Michigan, and nearly one -half of 
Indiana and Illinois, were yet unsettled. In the 
peninsula the Ottawa and Chippewa tribes, and in 
the two States the Miamis, Sac, Fox, and Potta- 
wattomies possessed their old seats quite undis- 
turbed. In like manner the Cherokees and Creeks 
in Georgia and Alabama, the Choctaws and Chick- 
asaws in Alabama and Mississippi, kept back the 
tide of immigration. All these tribes were soon 
to be removed west of the great river. The line 
of least resistance for immigration to the West 
thus continued along the Ohio, as of old. Vir- 
ginia sent immigrants to Ohio and Kentucky, 
and these in turn to Indiana and Illinois and 
Missouri. Tennessee, the Carolinas, and Georgia 
had sent their sons and daughters into Alabama 
and Mississippi, and now the inhabitants of these 
were migrating in turn to Florida, Louisiana, and 
Arkansas. Into the Northwest were passing the 
long lines of immigrant wagons from New Eng- 
land, New York, and Pennsylvania. Could one 
from some lofty height have taken in the whole 

* On the rare Carte du Mexique et de la Floride des Terres 
Angloises et des Isles Antilles du Course et des Environs de la 
Riviere de Mississipi .... par Guillaume Del 'Isle Geographe 
de l'Academie Royale des Sci. a Paris, 1703. 

261 



1 



Constitutional History of the American People 

Western country at one view, he would have seen 
the faces of thousands, young and old, turned tow- 
ards the West, hopefully seeking homes. Here 
and there along the wilderness - roads through 
Southern forests, and by the wagon-tracks on the 
prairie, camp-fires were burning, men were on guard 
over sleeping women and children, and, not infre- 
quently, wild animals and lurking Indians were 
prowling near. Nor would the wisest of men have 
been able to foretell that in less than a dozen years 
the country should witness a complete revolution 
in the means of transportation. The West, whose 
frontier was now at Kansas City, had been taken 
by a people who came on horseback and with ox- 
teams. With these primitive powers, in the short 
space of forty years, the frontier had been carried 
from Pittsburgh westward a thousand miles. 

In the founding of new Territories, new States, 
and new cities, new men came from obscurity to 
fame and power. Some laid out towns ; some, 
like Lincoln, surveyed farms and located township 
lines ; others served in the Assembly, or on the 
bench, or in the constitutional convention. When 
a Territory became a State the few who had been 
active in effecting the change became Governors 
and judges, or were elected to the House or to 
the Senate. Steadily throughout the West the 
majority of the electors supported the party which 
Jefferson had founded. The West was democratic. 
New leaders took the places of the old. The gen- 
eration that took part in the stirring scenes of 
'76 had passed away. Franklin and Washing- 

262 



Broadening the Qualifications of Voters 

ton, Morris, Sherman, Pinckney, Mason, Rutledge, 
seemed to belong to a distant past. Jefferson and 
Hamilton, though dead, had passed into political 
immortality. Webster and Clay, Benton and Cal- 
houn filled the eye of the public, and Jackson and 
Harrison were the military heroes of the age. 
Already covetous eyes were looking across the 
border into Texas, and slavocracy, excluded from 
the greater part of the Western country by the 
Missouri Compromise, was planning the reannexa- 
tion of that republic and its transformation into 
slave soil. 

Yet slavery was not the burden of the people's 
thought. A struggle that interested them more 
was in progress — the extension of the franchise. 
Religious and property qualifications, twin relics 
of colonial days, were coming to be interpreted as 
contrary to the spirit of republican institutions. 
Free schools, the equitable apportionment of repre- 
sentation, an elective judiciary, local government, 
land speculation, internal improvements, the use 
of public credit were the issues of paramount in- 
terest to the commonwealths and were beginning 
to dominate their laws and constitutions. No 
longer were the political theories of the eighteenth 
century the first thought of the leaders of public 
opinion. A half- century of experience in repre- 
sentative government had taught the people of 
the commonwealths that theory must be construed 
by administration. The questions how to secure 
a trustworthy bank and outlets for trade by high- 
ways and canals were now discussed with the zeal 

263 



Constitutional History of the American People 

which, in 1787, the question of representation had 
provoked in the federal convention. Nor is the 
cause far to seek. More than as many people as 
were living within the original States at the time 
of the convention were now living in States and 
Territories that then had no existence. This new 
nation accepted as settled ideas which were un- 
decided in 1787. The Constitution, and they 
who made it, were passing into perspective. A 
new generation felt new needs. History is in- 
structive, but it cannot run a government. The 
West needed a market — whence the cry for in- 
ternal improvements. It needed money — whence 
the demand for State banks. It knew nothing of 
social traditions — whence its rejection of discrimi- 
nating qualifications for elector and elected, and 
its demand that public offices should be filled, not 
by appointment, but by popular vote. It began life 
without churches and schools and with a desire 
for knowledge — whence the establishment of free 
schools for all and the multiplication of religious 
sects. Hard work and isolation made thinking a 
habit — whence the age bred men of limited read- 
ing, but of epoch-making ideas, and of these Lin- 
coln was easily foremost. To know this young 
West, this new world of revised democracy, we 
must know the lives of the settlers. We must fol- 
low them in their migrations and their labors, in 
their expectations and their disappointments. 

No man knew that during these years of the new 
century the embodiment of the new nation was 
coming into the early years of manhood, and that 

264 



The Sturdy Americanism of the West 

an obscure Kentucky family, emigrating from In- 
diana to central Illinois, bore with it the destiny of 
democracy in America.* The fascination which 
the early life of Lincoln has in our day for old and 
young is of the Homeric quality, belonging to a 
stern age that has passed away. Yet his life was 
for nearly forty years like the lives of thousands 
of men of the West whose names are now forgotten. 
It is the making of the West that proved to be the 
making of the nation. The East long continued 
Anglican and continental ; the West began Amer- 
ican — and by the West is meant the great valley of 
the Mississippi. As yet the sentiment of union 
was feeble and obscure. It was one of States 
united, not of the United States. No man had 
stirred the imagination of the people with the 
thought of nationality. It was an age of State-mak- 
ing — of the founding of cities and of road-making 
from east to west, but not from north to south. 
Government was a personal matter, not, as now, 
a function handed over to committees. 

Many associations unknown to the East made 
the national government a part of daily life in the 
West. Congress had established the Territory, 
and every foot of land in cultivation or for sale 
had been surveyed by an official of the United 
States. Every title came from the national land- 
office. Every sixteenth section was a guarantee of 

* A map of Illinois, " showing points of interest in Lincoln's 
early life," and the route of the family from Indiana, is given on 
p. 45 of Miss Tarbell's Early Life of Lincoln. New York, S. S. 
McClure, 1896. 

265 



Constitutional History of the American People 

free schools. With these prosaic associations no 
colonial traditions, royal grants, or conflicting 
State claims interfered. It was a new world ; a 
fresh experience ; a precedent for posterity. The 
vastness of the public domain made generosity an 
easy virtue with the government, and land could 
be had almost for the asking. 

It followed that the new States and the old 
viewed the government in quite different lights. 
The old Thirteen looked upon the Union as their 
creation; the new States looked upon it as their 
creator. They began with the Union, but the 
older States thought that the Union began with 
them. Old and new alike thought of the Union 
as a compact — as a government of specified, dele- 
gated powers. To this degree of unanimity all 
the States had attained — from Maine to Missouri, 
from Michigan to Florida. The doctrine of '98 
was held by the majority of people who gave the 
question any thought. It was both the legal and 
the historical view. Equality was a well - worn 
word in 1830, but the century was to reach its 
close before politicians and parties and newspa- 
pers and preachers and teachers and writers in 
America were to be talking and thinking and de- 
manding economic equality. As yet, political 
equality was conceived to be the rightful remedy 
? for all social ills. 



CHAPTER X 

FEDERAL RELATIONS— MISSOURI 

By the treaty of 1803 the United States* agreed 
to protect the inhabitants of the Louisiana coun- 
try in the enjoyment of their liberty, religion, and 
property.! The country was slave soil. Slaves 
were property, and by the treaty this property 
was under the protection of the United States. 
The protection was not conditioned upon the 
amount or the value of the property. The owner 
of a single slave was as much the object of the 
treaty as if the entire acquisition had been filled 
with a slave -holding population. When Louisi- 
ana was admitted, the guarantee of the treaty, the 

* The principal authorities for this chapter are the Annals of 
Congress, 1819-21 — i.e., the fifteenth Congress, second session, 
to the close of the second session of the sixteenth Congress. 
This chapter was written several years before the publication 
of Professor James A. Woodburn's article on The Historical 
Significance of the Missouri Compromise, in the Annual Report 
of the American Historical Association for 1893, pp. 251-297. 
Washington: Government Printing-office, 1894. In revising my 
chapter I have been glad to be confirmed, in several particulars, 
by Professor Woodburn's able paper. 

t Art. iii. The treaty may be found in Treaties and Conven- 
tions, etc., pp. 331-334; the convention for the purchase-money, 
pp. 334, 335 ; for the payment of debts assumed by the United 
States, pp. 335-342. 

267 



Constitutional History of the American People 

wishes of the inhabitants, and the will of Congress 
made it a slave State. There were at the time, 
exclusive of the Indian tribes, about one hundred 
thousand people in the Louisiana country — three- 
fourths of whom were in the new State, and near- 
ly all of the remainder within the present bounds 
of Missouri. 

Ten years passed. Arkansas had nearly fifteen 
thousand population and Missouri nearly seventy 
thousand. In Missouri, at this time, there were ten 
thousand slaves; in Arkansas about sixteen hun- 
dred. The treaty further provided for the ad- 
mission of new States that might be formed out 
of the purchase — on an equal footing with the 
original States. The petition of Missouri for ad- 
mission was presented to the House on the 16th 
of March, 1818, by Scott, its delegate, as chairman 
of the select committee to which this and several 
petitions of a similar nature were referred. He 
reported a bill on the 18th of April, empowering 
the people of the Territory to form a constitution, 
a State government, and to be admitted into the 
Union on an equal footing with the other States. 
The bill was read twice and referred to the Com- 
mittee of the Whole, but received no further at- 
tention at this session. 

At the second session, Henry Clay, the Speaker, 
on the 1 8th of December, laid before the House a 
recent memorial of the Missouri Legislature pray- 
ing for admission; but not until the 13th of Feb- 
ruary following did the question come up, when, 
in Committee of the Whole, the House began the 

268 



Restricting the Spread of Slavery 

discussion of the enabling acts for Alabama and 
Missouri. As reported, these were in the form 
hitherto usual in the admission of a State — that 
the constitution of the new commonwealth be re- 
publican in form and not inconsistent with the 
Constitution of the United States. The act for 
Missouri was first considered, and, on the second 
day, Tallmadge, of New York, offered an amend- 
ment embodying two restrictions — that the further 
introduction of slavery, except as a punishment for 
crime, be prohibited, and that all children born 
within the State should be free, but might be held 
to service until the age of twenty-five years. The 
purpose of the second restriction was gradual 
emancipation — after the precedent of most of the 
Northern States. The first restriction was taken 
from the Ordinance of 1787. The restrictions, it 
was said, were both right and expedient. On the 
other hand, it was argued that Congress had no 
power to prescribe the details of a State govern- 
ment other than that it must be republican in 
form. Of what value a restriction ? Once ad- 
mitted, a State had the unquestioned right to 
change its constitution. But, replied the friends 
of the restriction, Congress has a clear and compre- 
hensive grant of power in the constitutional pro- 
vision authorizing it " to dispose of and make all 
needful rules and regulations respecting the Ter- 
ritory or other property belonging to the United 
States." Thus, in exercise of this power, Con- 
gress, in the enabling acts for Ohio, Indiana, and 
Illinois, had made their admission to the Union 

269 



Constitutional History of the American People 

conditional upon their constitutions not being 
repugnant to the Ordinance of 1787. Missouri 
lay in the same latitude. Why should not the 
same principles of government be applied ? Very 
true, answered the opposition, if Congress were 
not restrained by the treaty of 1803. T ne obli- 
gation rests on Congress to protect the property 
of the inhabitants of the late French territory; 
therefore no restriction can be placed on slavery. 
Not so, said the supporters of the amendment. 
The treaty contained not one word about erect- 
ing the new country into States. Who make 
treaties ? The President and the Senate. Would 
any man claim that they had power to bind 
Congress to admit new States into the Union? 
Then the President and the Senate could change 
the Constitution and rob Congress of one of its 
expressly delegated powers. Clearly the treaty 
could not affect the question, and, in truth, the 
erection of the Territories of Louisiana and 
Orleans, and the admission of the first as a 
State, proved this. Congress had then annexed 
conditions: the civil law had to give place, in 
large measure, to the common law; trial by jury 
was introduced ; and the language of the inhabi- 
tants — chiefly Spanish and French — was not al- 
lowed to remain supreme ; legislative and judicial 
proceedings were required to be conducted in 
English. Congress was, therefore, sovereign with 
respect to the Territories. Missouri was bought 
for money, and might be sold for money. How 
irrational, then, to claim that though Congress had 

2.70 



Slavery Detrimental to the State 

power to change the political relations of its free 
citizens by transferring their country to a foreign 
power, it could not provide for the gradual aboli- 
tion of slavery within its limits nor establish civil 
regulations naturally flowing from a self-evident 
truth. 

If slavery be excluded from the new State, 
argued a Virginia member, the price of the pub- 
lic lands would fall. Not so ; the reverse would 
follow, replied a member from New York. Com- 
pare the price of land in Pennsylvania and Mary- 
land, along the line dividing free from slave soil. 
On the Pennsylvania side, where slavery was for- 
bidden, land uniformly sold at a higher price than 
that of the same quality on the Maryland side. 
Slavery would diminish the value of the public 
lands in Missouri, just as it had diminished the 
value of land wherever it was allowed. Why had 
not the people of Ohio, Indiana, and Illinois 
changed their State constitutions and introduced 
slavery ? Because they had learned by experience 
the value of the Ordinance of 1787. Public senti- 
ment there sustained the principle of the Ordinance 
far more effectually than any constitutional pro- 
hibition could do. Is it not the duty of Congress, 
inquired a Massachusetts member, to ascertain, 
before admitting a new State, that its constitution, 
or form of government, is republican ? This was 
secured by the restriction. The existence of sla- 
very in any State is, so far, a departure from re- 
publican principles. It violated the Declaration 
of Independence and the principle on which our 

271 



Constitutional History of the American People 

national and State constitutions are professedly 
founded. Since it could not be denied that slaves 
are men, it followed that, in a purely republican 
government, they are born free, and are entitled to 
liberty and the pursuit of happiness. No sooner 
was this said than members were on their feet call- 
ing the speaker to order for using improper lan- 
guage. He had no right, in debate, to question the 
republican character of the slave-holding States ; 
such language tended to deprive them of the right 
to hold slaves as property; moreover, it was not 
improbable that there were slaves in the gallery 
listening to the debate. But the member quickly 
assured the House that nothing was further from 
his thoughts than to question the right of Virginia 
and other States which held slaves when the Con- 
stitution was established to continue to hold them. 
With that subject the national Legislature could 
not interfere, and ought not to attempt interference. 
Would it be a republican form of government 
if Missouri submitted a constitution by which no 
person could vote or be elected to office unless he 
possessed a clear annual income of twenty thousand 
dollars ? As few had such an income, the govern- 
ment would be an aristocracy in fact, though a 
republic in form. But if all other inhabitants, save 
those favored by wealth, were to be made the 
slaves of this oligarchy — and consequently mere 
property — would not the republican principle be 
outraged? The exclusion of the black popula- 
tion from all political freedom and the making 
them the property of the whites were an equally 

272 



The Constitution Does not Apply to New States 

palpable invasion of right and abandonment of 
principle. If permitted in a new State, Congress 
would violate the Constitution; the excuse existing 
in 1787 no longer remained. Then concessions 
were necessary and proper. The States in which 
slavery existed claimed the right to continue it, 
nor could they be asked to make a general eman- 
cipation of their slaves. It would have endangered 
their political existence. The Constitution was a 
compact among the original States, and contain- 
ed certain exceptions in their favor — such as the 
obligation on Congress not to prohibit the African 
slave-trade till 1808; also the provision for the 
rendition of fugitive slaves. These exceptions did 
not apply to new States. To attempt to extend 
slavery over them would be a direct violation of 
the clause which guarantees a republican form of 
government to the States. Clay had argued that 
the proposed restriction would violate the provi- 
sion that citizens of each State shall be entitled to 
all the privileges and immunities of citizens of the 
several States. But can slavery be called a privi- 
lege ? inquired a member. Surely what was gained 
by the master was lost by the slave. Slavery was 
the exception to the general principles of the Con- 
stitution. Clay had asked, Where would condi- 
tions end if Congress could impose them on a new 
State ? Congress, was the reply, is obliged to re- 
quire a republican form of government — which was 
enough to decide the question at issue; but it had 
the right, at its discretion, to impose any reasona- 
ble condition. The conditions imposed on Ohio, 
i— s 273 



Constitutional History of the American People 

Louisiana, Illinois, Indiana, and Mississippi were 
not more indispensable ingredients in a republican 
form of government than the restriction now pro- 
posed for Missouri — the equality of privileges for 
all its population. 

But, it was said, the restriction would abridge 
the rights of citizens of the slave-holding States to 
transport their slaves to the new State, for sale or 
otherwise — thus violating the principle, clearly 
laid down in the Constitution, of the equal rights 
of citizens of the several States. Did not the 
Constitution itself answer this objection? The 
migration or importation of such persons as any 
of the States existing in 1787 might admit should 
not be prohibited by Congress till 1808. Clearly 
this implied that after that year migration or im- 
portation might be prohibited. Importation had 
been prohibited, but not migration. Could not 
Congress restrain it whenever it might be judged 
expedient? Migration did not mean importation 
nor exportation. Nor could it mean the reception 
of free blacks from a foreign country, as some 
alleged, for there was no possible reason for regu- 
lating their admission by the Constitution. More- 
over, none ever came. There remained but one 
meaning for migration — the transportation of 
slaves from slave - holding States to other States. 
Hitherto it had not been necessary for Congress to 
prohibit migration or transportation from State to 
State; now it was its right and duty to prevent the 
further extension of the intolerable evil of slavery. 
To these arguments for the amendment there was 

274 



A Blow for Emancipation 

but one reply, repeated now by one member, now 
by another: If the citizens of Pennsylvania or 
Virginia enjoyed the right of deciding whether or 
not they should have slavery, why should not the 
citizens of Missouri have the same privilege ? 
Discrimination of this kind by Congress among 
the States would destroy the Union. Let the 
advocates of restriction beware ! On them would 
rest the fearful responsibility if civil war should 
come. They were exciting servile insurrection ; 
they were attacking the vested rights of property. 
Let them not imagine that the people of the slave- 
holding States did not know their rights and 
would not protect them. 

But the mind of the House was made up, and 
on the 1 6th both sections of the amendment 
passed — the first, prohibiting the further intro- 
duction of slavery, by a majority of eleven ; # the 
second, for gradual emancipation, by a majority 
of four.t A Delaware member voted with the 
majority on the first section, and ten members — 
from Massachusetts, New York, New Jersey, New 
Hampshire, Ohio, and Illinois — with the minor- 
ity. Both sections were carried, however, by a sec- 
tional vote. 

On the next day, Taylor, of New York, moved 
the Tallmadge amendment to the bill providing 
a Territorial government for Arkansas — a subdi- 
vision of the Missouri Territory. The question 
differed from the one of the day before. That 

* Eighty-seven to seventy-six. 
t Eighty-two to seventy-eight. 

275 



Constitutional History of the American People 

applied to a State, this to a Territory. Clay 
charged the supporters of the amendment with 
being afflicted with negrophobia. Who, yester- 
day, feared the negro faces in the gallery ? was the 
rejoinder. But the amendment would coop up 
the people of the slave-holding States by prevent- 
ing the extension of their wealth and population. 
A glance at the map would confute this charge, 
was the reply : what immense and fertile regions 
were open to slavery, from the Sabine to Georgia ; 
what millions of rich acres were lying waste in 
Alabama, Mississippi, Louisiana! Were not these 
enough ? 

Was not the amendment an entering wedge for 
an attack by Congress on the property of mas- 
ters in their slaves ? Certainly not. The amend- 
ment did not disturb that right, even in Arkansas. 
But it would tend to the dissolution of the Union. 
Impossible ! Could any man believe that the pres- 
ervation of the Union depended on the admission 
of slavery into a Territory which did not belong 
to the States when the Union was formed — a Ter- 
ritory purchased by Congress, and for which it 
was bound to legislate with faithful regard for the 
public welfare ? 

To this it was answered that Congress had no 
right to legislate on the property of citizens, but 
could levy taxes only. Why not prohibit other 
forms of property from crossing the Mississippi. 
The Southern States had given up the vast terri- 
tory north of the Ohio and ought not to be de- 
prived of a small share of the advantages of this 

276 



A Line of Demarcation for Slavery 

new Louisiana country. At this point a claim was 
put forth which, thirty years later, when the Mis- 
souri Compromise was re-examined, became one of 
the chief reasons for its repeal : the amendment 
proposed would take away from the people of Ar- 
kansas Territory the natural and constitutional 
right of legislating for themselves, and would im- 
pose on them a condition which they might not 
willingly accept. In organizing a Territorial gov- 
ernment and forming a constitution, they, and they 
alone, had the right to be the judges of what policy 
was best adapted to their genius and interests, and 
it ought to be left exclusively to them. They alone 
could decide whether to prohibit or to admit slave 
immigration. Slavery was an evil entailed upon 
the country ; it was not our original sin. The 
more widely diffused, the less the evil. The peo- 
ple of Arkansas and the West were the best judges 
of their constitutional rights. This was popular 
sovereignty. 

Another idea destined to dominate the final 
decision was now advanced by McLane, of Dela- 
ware. A line should be fixed west of the Missis- 
sippi, north of which slavery should not be toler- 
ated. Congress had no power to impose any 
condition upon the admission of a State impair- 
ing its sovereignty. The term State meant sov- 
ereignty. The claim of right to impose condi- 
tions was a double-edged sword. At some future 
day, when the slave - holding interest dominated 
Congress, it might be made a condition, when a 
new State was admitted, that slavery should never 

277 



Constitutional History of the American People 

be prohibited. A vast, unsettled region made 
this possible. On the vote the amendment was 
divided, and the first clause, forbidding the further 
introduction of slavery, was defeated by one vote ;* 
the second clause was carried by two.t On the 
19th, by Clay's casting vote, the second clause 
was recommitted, and was finally struck out by 
two votes4 In slightly modified form, Taylor 
now renewed his amendment, but it was rejected 
by four votes. § He then applied the idea of a fixed 
line between the two sections ; slavery should not 
be introduced into any part of the Territories 
of the United States lying north of 36 3c/ north 
latitude. The idea at once met with favor, and 
various lines were proposed. But none of these 
lines applied to Arkansas, and that Territory was 
organized without the imposition of any restric- 
tion on slavery. 

It may be remarked that, in this debate, the 
principal arguments for and against slavery exten- 
sion, heard later in the debates over the series of 
enactments called the Missouri Compromise, were 
outlined : that Congress was bound by the treaty 
of 1803; that it could not interfere with property 
rights ; that the States were sovereign, and that 
Congress could impose no Condition on them at 
admission. The suggestion of a fixed dividing 
line between slave soil and free soil was sedulously 
followed up. It was first made by a member from 
a slave-holding border State. 

* Seventy-one to seventy, t Seventy-five to seventy-three. 
\ Eighty-nine to eighty-seven. § Ninety to eighty-six. 

278 



Agitation Over the Rejection of Missouri 

On the 17th the Missouri bill was read in the 
Senate, and referred to a committee having charge 
of a similar bill from Alabama. Ten days later 
both sections of the Tallmadge amendment were 
struck out, # and, as thus amended, the bill passed. 
Neither House would recede, and meanwhile Con- 
gress adjourned. The rejection of Missouri im- 
mediately became the theme of discussion all 
over the country. The case was reopened and re- 
argued by all sorts and conditions of men. Peti- 
tions, arguments, and appeals ; pamphlets, sermons, 
editorials, and resolutions accumulated as the sea- 
son's political harvest. When Congress met, on 
the 6th of December, no member was forgotten, 
and a Representative had but to glance over his 
mail to discover how he ought to vote on the 
Missouri question. Had all this mass of opinion 
been sorted, it could have been cast into two heaps 
— one from the South, one from the North. It 
was a sectional question — the first, clearly defined, 
that had arisen since the formation of the Union. 
On the 8th, Scott, the Missouri delegate, pre- 
sented several memorials from the Legislature and 
some of the inhabitants of the Territory, praying 
for its admission ; and Strong, a New York mem- 
ber, gave notice that he would ask leave, on the 
following day, to introduce a bill prohibiting the 
further extension of slavery within the Territories 
of the United States. The notice was a sign of 
the times. 

* The first by a vote of twenty- two to sixteen ; the second, by 
thirty-one to seven. 

279 



Constitutional History of the American People 

A new element now entered into the problem. 
The people of Maine asked admission as a State, 
and a bill for this purpose was introduced in the 
House and another in the Senate.* There was 
nothing unusual in either bill. Each was a sim- 
ple enabling act. The House bill passed on the 
3d of January, 1820. While on its progress, Clay, 
on the 30th of December, expressed himself in 
ambiguous but suggestive language. If hard con- 
ditions were to be imposed on new States beyond 
the mountains, and Congress were thus to strike 
at their power and independence, might not hard 
conditions be imposed on new States in the East ? 
Whatever this signified, on the 6th, when the 
House bill came up in the Senate, it was proposed 
to embody in the bill for the admission of Maine a 
clause for the admission of Missouri. Two wholly 
irrelevant matters were thus combined. Roberts, 
a Senator from Pennsylvania, labored in vain to 
separate the propositions and to amend the bill 
further by prohibiting slavery in Missouri. Every 
effort of the restrictionists to apply the provisions 
of the Ordinance of 1787 to the new State was de- 
feated. In the debate the old arguments were re- 
peated and elaborated ; citations were made from 
the writings of the fathers, and The Federalist 
was quoted in evidence by both sides. On the 
1 8th, Senator Thomas, of Illinois, brought in a bill 
to prohibit slavery in the Territories north and west 

* The Articles of Separation, the Proclamation of the Governor 
of Maine, and other documents are given in Maine Constitutional 
Convention, 1819-20; Charles E. Nash, editor, Augusta, 1894. 

280 



The Maine- Missouri Bill in the Senate 

of the proposed State of Missouri, which bill passed 
to a second reading. As the debate continued, 
most of the States sent up resolutions, and, except 
those from Delaware, the resolutions opposing the 
extension of slavery came from free States. Some 
compromise must be made, for neither the restric- 
tionists nor the extensionists seemed likely to re- 
cede. On the 1 6th of February, by a majority of 
two votes, the Senate united the Maine and Mis- 
souri bills, and Thomas offered the compromise. 
Except within the limits of the State of Missouri, 
in all the territory north of 36° 30' slavery should 
be prohibited. Efforts were made to modify this 
amendment — as by Barbour, of Virginia, who wished 
the line at forty degrees. Thomas amended it on 
the following day by adding a fugitive-slave clause, 
and in this form it passed the Senate by a majority 
of more than three to one.* Eaton, of Tennessee, 
sought to have the amendment apply to the West 
only so long as it remained a Territory; and Trim- 
ble, of Ohio, wished the restriction to apply to all 
territory west of the river, except Missouri ; but 
both propositions were rejected. On the 18th the 
Maine-Missouri bill, as amended, passed the Senate 
and went to the House. Taylor moved that the 
House disagree to the amendments, and Scott that 
they be sent to the Committee of the Whole ; his 
motion had precedence under the rules. A long 
and animated discussion followed, when the motion 
to commit was lost.t 

* Thirty-four to ten. 

t Seventy to one hundred and seven. 

281 



Constitutional History of the American People 

Would the House disagree ? This was debated 
three days, when, by large majorities, the Missouri 
rider and the Thomas amendment were rejected.* 
The House then took up its own bill, with the 
Taylor restriction, in Committee of the Whole. 
It made but slight progress ; yet the discussion 
disclosed that a restrictive clause of some kind 
would be likely to pass. Taylor's restriction 
passed, in Committee of the Whole, on the 25th, 
and on the following day Storrs, of New York, 
moved the Thomas amendment, in substance, and, 
in a speech, supported it, though only incidentally 
examining the right of Congress to impose the 
slavery restriction on Missouri. Two days later 
a message was received from the Senate that it 
would insist on its amendments, and Taylor at 
once moved that the House insist on its disagree- 
ment. It was carried by a large majority — first, 
that the Maine bill and the Missouri bill should 
not be combined,t and, secondly, by a larger major- 
ity, that the compromise amendment should be re- 
jected. £ The meaning of the vote was stated by 
Lowndes, of South Carolina. The friends of Mis- 
souri would vote for the compromise principle 
when combined with the free admission of the 
State ; yet, as the amendment relative to Missouri 
had been disagreed to, it was useless to return it in 

* The Missouri attachment by vote of ninety-three to seventy- 
two; the details of the Missouri bill, by vote of one hundred and 
two to sixty-eight ; the Thomas amendment, by vote of one hun- 
dred and fifty-nine to eighteen. 

t Ninety-seven to seventy-six. 

\ One hundred and sixty to fourteen. 

282 



Conference on the Maine- Missouri Bill 

connection with the Maine bill alone. Thus it was 
clear that Lowndes and his friends would oppose 
slavery restrictions on Missouri, though they might 
agree to apply them to the Territories. 

When the Senate was informed that the House 
insisted upon its disagreement, Thomas moved for 
a committee of conference, whereupon a debate 
marked by "vehemence and warm feeling" en- 
sued. But the motion prevailed. Its author, 
Pinkney, of Maryland, and Barbour, of Virginia, 
were appointed conferees for the Senate. On the 
next day the House agreed to confer, and ap- 
pointed as conferees Holmes, the delegate from 
Maine; Taylor; Lowndes; Parker, of Massachu- 
setts, and Kinsey, of New Jersey. 

This procedure did not interrupt the progress of 
the bill pending in the House, and, with the Taylor 
restriction, it passed on the ist of March,* and 
was sent to the Senate for concurrence. The 
Senate, on the following day, struck out the Taylor 
restriction,! substituted the Thomas amendment, 
passed the bill, and sent it back to the House. 
Would the bill in this form be agreed to by the 
conference committee ? At the request of Holmes, 
the Senate bill was laid on the table long enough 
to givfrlim an opportunity to make a report from 
the committee. That report was soon made. The 
Senate should recede from its amendments — that 
is, abandon the combination of Maine and Mis- 
souri in one bill — and Maine should be admitted. 

* Ninety-one to eighty-two. t Twenty-seven to fifteen. 

283 



Constitutional History of the American People 

The House should abandon the restriction of sla- 
very within Missouri. Both Houses should agree 
to the Thomas amendment — the compromise — 
excluding slaves north and west of Missouri. 

Would the House concur? Would it consent 
to the admission of another slave State ? It seem- 
ed impossible that so strong a majority as that 
which had voted for restriction would recede. But 
moderation prevailed, Kinsey undoubtedly express- 
ing the opinions of the body of the House — at 
neither extreme — favoring a compromise : " Now 
is to be tested whether this grand and hitherto 
successful experiment of free government is to con- 
tinue, or, after more than forty years' enjoyment of 
the choicest blessings of heaven under its admin- 
istration, we are to break asunder on a dispute 
concerning a division of territory. Gentlemen of 
the majority have treated the idea of a disunion 
with ridicule ; but, to my mind, it presents itself 
in all the horrid, gloomy features of reality. # # * 
On this question, which for near[ly] six weeks has 
agitated and convulsed this House, I have voted 
with the majority. But I am convinced, should we 
persist to reject the olive-branch now offered, the 
most disastrous consequences will follow. These 
convictions are confirmed by that acerbity of ex- 
pression arising from the most irritated feelings, 
wrought upon by what our Southern brethren con- 
ceive [the] unkind, unjust, determined perseverance 
of the majority, and to those I now beg leave to ad- 
dress myself. Do our Southern brethren demand 
an equal division of this wide-spread, fertile region, 

284 



Stubborn Resistance of the Free- S otters 

this common property, purchased with the common 
funds of the nation? No; they have agreed to fix 
an irrevocable boundary, beyond which slavery shall 
never pass ; thereby surrendering to the claims of 
humanity and the non-slave-holding States, to the 
enterprising capitalists of the North, the Middle 
and Eastern States, nine-tenths of the country in 
question. In rejecting so reasonable a proposition 
we must have strong and powerful reasons to jus- 
tify our refusal. * * * Should we now numerically 
carry the question, it will be a victory snatched 
from our brothers. It will be an inglorious tri- 
umph, gained at the hazard of the Union. Hu- 
manity shudders at the thought. National policy 
forbids it. It is an act at which no good man will 
rejoice, no friend of his country can approve." 
The vote was called, and disclosed that compro- 
mise had prevailed over restriction by a majority 
of three.* Taylor, unwilling to give up the fight 
for free soil, moved to strike out 36° 30', and 
exclude slavery from all soil west of the Missis- 
sippi, except Louisiana, Arkansas, and Missouri ; 
but this was rejected. The bill passed both Houses 
on the 2d, Maine was admitted on the i5th,t and 
the people of Missouri were empowered to form 
a constitution and a State government. 

On the 12th of June the constitutional conven- 



* Ninety to eighty-seven. 

t Massachusetts had consented to the separation of Maine on 
condition that it should be admitted to the Union by the 4th of 
March, 1820. See the Articles of Separation, Sec. i., in Nash, p. 
3 of third paging. 

285 



Constitutional History of the American People 

tion of Missouri assembled at St. Louis, and com- 
pleted its work on the 19th of July. Many of the 
delegates believed that Congress had usurped its 
powers in the enabling act. The Constitution 
reflected public sentiment in the Territory. It 
sanctioned slavery, and forbade the Legislature to 
interfere with it. The clause, which originated 
with Thomas H. Benton,* forbade emancipation 
without the consent of the owners, and made it 
the duty of the General Assembly as soon as 
possible to pass whatever laws might be neces- 
sary to prevent free negroes or mulattoes from 
coming to the State or settling in it, under any 
pretext whatever.! It was laid before Congress 
by Scott, on the 16th of November, and was re- 
ferred to a select committee.:}: 

Lowndes presented its report a week later. 
The committee thought that the provisions of the 
enabling act had been complied with ; whether 
wisely or liberally, it was not for them to decide. 
Congress could not well anticipate judicial de- 
cisions by interpreting an equivocal phrase, or 
by deciding on the powers of a new State, and 
thus add the weight of its authority to an 
opinion which might condemn the laws and con- 
stitutions of old as well as sovereign States. 
The clause in the Missouri constitution excluding 
free negroes and mulattoes might be construed to 
apply to such of that class as were citizens of the 



* Thirty Years View, Vol. i., p. 8. f Art. iii., Sec. 26. 

\ Lowndes, Sergeant, of Pennsylvania, and Smith, of Mary- 



land. 



Difficulty in Defining the Federal Constitution 

United States, and thus be repugnant to the fed- 
eral Constitution. The objectionable clause was to 
be found in the laws of Delaware,* and, on careful 
examination, it might perhaps be applied to the 
large class of free negroes and mulattoes who 
could not be considered to be citizens of any 
State.t No article of the Constitution of the 
United States was more difficult to construe than 
that giving to the citizens of each State the privi- 
leges and immunities of citizens of the several 
States. Too large a construction of this would 
completely break down the defensive powers of 
the States and lead directly to their consolidation. 
The constitutions of the States settled this much — 
that a State has the right to discriminate between 
the white and the black man, in respect both to 
political and civil privileges, though both be citi- 
zens of another State — giving the right of voting 
and serving on juries to the white, refusing it to 
the black. The Territorial condition ceased when 
the people formed a State government, an act 
which made them sovereign and independent. 
Judicial tribunals must then determine the consti- 
tutionality of laws. A decision by Congress against 
the constitutionality of a law passed by a State of 
which it had authorized the establishment could 
not operate directly by vacating the law, nor could 

*Act of January 28, 1811. The committee might have cited 
similar acts in other States — Maryland, 1806; Virginia, January 
26, 1806; South Carolina, December 20, 1 800 ; Kentucky, February 
23, 1808. 

t The number of free persons of color in 1820 was 233,634. 

287 



Constitutional History of the American People 

it reduce the State to the dependence of a Territory. 
Therefore, to refuse admission to the State, in these 
circumstances, would be to refuse to extend over 
it that judicial authority which might vacate the 
obnoxious law, and to expose all the interests of 
the government within that State to a Legislature 
and a judiciary the only checks on which had 
been abandoned. The report concluded with a 
brief resolution in favor of the admission of Mis- 
souri. 

Discussion began on the 6th, led by Lowndes, 
who, though in feeble health, made his last impor- 
tant speech in Congress, which was, perhaps, the 
most impressive delivered throughout the debate. 
Congress, he maintained, had already admitted the 
State by the enabling act. In the case of Indiana, 
five years before, Congress, for the first time, added 
a formal act of admission to the enabling act, as 
a general notice to the members of the Union. 
After the enabling act for Ohio no resolution for 
admission was passed, but an act, necessary in 
its nature, to extend the jurisdiction of the United 
States courts over the new State. That the 
House, in passing the Missouri enabling act, fully 
intended to confer the rights of a State was evi- 
dent from an amendment offered by Taylor, that 
if its constitution be approved by Congress the 
Territory should be admitted into the Union upon 
the same footing as the original States, which had 
been defeated by a large majority,* the vote signi- 

* One hundred and twenty-five to forty-nine. 



The National Constitution Dominant 

fying that Missouri was made a State without the 
condition that Congress approve its constitution. 
The clause in the constitution respecting the ex- 
clusion of free persons of color was objectionable 
to some members. Whether or not it was con- 
stitutional should be left for the Supreme Court to 
determine. Few of the free blacks in the country 
were citizens in their respective States. The 
clause might be construed as excluding the few 
who were. They were excluded by the laws of 
some of the other States. Why not attack these 
laws ? Why discriminate against Missouri alone ? 
When Tennessee sought admission, it was ob- 
jected that its constitution was incompatible 
with that of the United States; but the ob- 
jection was fully answered, that, as the national 
Constitution is paramount, the provisions, if any, 
in that of Tennessee could be of no effect. Mis- 
souri was already exercising all the rights of a 
sovereign State. 

Sergeant replied at some length to Lowndes. 
If Missouri was a State, why were her Senators 
and Representatives kept waiting at the doors 
of Congress ? Why was the constitution of Mis- 
souri submitted to a committee of the House? 
Certainly Missouri would not be a State until so 
admitted by resolution of Congress. Its people 
were authorized to form a constitution not repug- 
nant to that of the United States. Who was em- 
powered to decide whether they had done so ? The 
fault was with Missouri, not with Congress. The 
House should be satisfied that Missouri had com- 
i. — t 289 



Constitutional History of the American People 

plied with the conditions prescribed : a govern- 
ment republican in form; a constitution not re- 
pugnant to that of the United States. The 
degree of repugnancy was not involved. Whether 
all or a part of the constitution submitted be re- 
pugnant, Congress must insist on the conditions. 
It alone could be the judge. The question was 
not one for the Supreme Court to decide. The 
Constitution of the United States must not be 
violated. Congress is peculiarly and emphaticalty 
its sworn guardian. If Missouri had provided 
that no free white citizen of the United States 
should be permitted to come and reside in the 
State, what member would consent to its admis- 
sion ? In North Carolina, in New York, in Mas- 
sachusetts, free persons of color were citizens. 
The right of citizenship did not imply the right 
to vote — as in some States more than half the 
white men did not vote because they were not 
freeholders, yet no one denied that they were 
citizens of these States. The simple right of loco- 
motion was indispensable to citizenship, and that 
was all that was now asked. 

But the question involved more than the right 
of locomotion ; it involved the citizenship of free 
persons of color. Were they citizens? For the 
first time, the civil and political rights of these 
people without a country, at this time more than 
three hundred thousand in number, were the 
theme of a debate in Congress, the issue of which 
was to decide the admission of a State into the 
Union, and possibly the fate of the Union itself. 

290 



The Pariahs of Our Early Republic 

No more curious or more unexpected turn in 
public affairs could have arisen than this respecting 
a class of people unwelcome in every State, ex- 
cluded from many, refused all social relations 
with the whites in the free States ; denied, under 
severe penalties, all association with the slaves in 
the slave States ; excluded from enrolment in the 
militia; incapable of serving as jurors, or, in most 
States, as witnesses against a white man ; for 
whom no schools or hospitals existed; and who 
were, as a class, considered to be only criminals at 
large. In spite of increasingly rigorous laws against 
emancipation, this class had increased almost phe- 
nomenally. When the Constitution was adopted, 
it numbered less than sixty thousand.* At the 
opening of the century it was more than a hun- 
dred thousand.! At the time of the admission of 
Louisiana, nearly ninety thousand more4 It had 
increased nearly forty thousand since then, yet 
there was little amelioration of law or public prej- 
udice. The letter of the law and the constitution 
enrolled them as citizens in New York, where 
twenty-nine thousand resided; in Massachusetts, 
with less than seven thousand; § in North Caro- 
lina, with half as many as New York.|| There 
were few slaves in the Louisiana country when 
Louisiana asked admission into the Union, yet, 



* In 1790, 59,527. t In 1800, 108,435. 

X In 1810, 186,446. Louisiana was admitted in 1812. 
§ In 1820 there were 6740 in Massachusetts ; the area of the 
State is 8315 square miles. 

I In 1820 North Carolina had 14,712 free persons of color. 

291 



Constitutional History of the American People 

by the treaty, this form of property must be pro- 
tected, and the few determined the character of 
the new State. Only three States were empha- 
sized, in 1820, as having conferred citizenship on 
free persons of color, and very few of these per- 
sons, it is believed, actually exercised in them 
both civil and political rights. Yet the rights of 
this handful of despised free negroes were to 
turn the scale in the admission of Missouri and 
put all federal relations in clearer light. Had 
there been no free persons of color, the Missouri 
struggle would have ceased with the passage of 
the enabling act. Had there been no slaves, 
there would have been no struggle. Had no 
State already conferred the rights of citizenship 
on some free negroes, the constitution submitted 
by Missouri would have raised no objections. 

Should a new State be permitted to exclude 
the citizens of another State? This was the new 
issue — a question of States' rights, of federal rela- 
tions. Has Congress the right to decide, finally, 
whether the constitution of a proposed State con- 
flicts with the constitution and laws of another 
State, or with the national Constitution, and refuse 
it admission ? The question was sure to arise, 
sooner or later, in the republic. It came now, 
suddenly, and it must be answered. With union 
or disunion ? There seemed no ground for com- 
promise. For the slave had defenders, as property 
always finds defenders ; but for the free negro, 
who would speak ? 

It was denied that he was in any State a citizen 

292 



Dangerous Proclivities of the Free Negro 

in full enjoyment of civil rights. In North Carolina 
he could not give testimony in any case in which 
a white man was a party. In Massachusetts his 
marriage with a white woman was null and void. 
In New York he could not serve as a juror. As 
each State had the right to prescribe the qualifica- 
tions of its own citizens, should not Missouri be 
permitted to do the same ? Slavery was permitted 
in Missouri. In the Southern States free persons 
of color were considered the most dangerous class 
possible in a community. Elevated just enough 
to have some sense of liberty, they had not the ca- 
pacity to estimate or enjoy all its rights, and, be- 
ing between two societies, above one and below 
the other, they were in a most dissatisfied state. 
" They are themselves perpetual monuments of dis- 
content, and firebrands to the other class of their 
own color." As they were not citizens in any 
State, like white men, the constitution of Missouri 
did not conflict with that of the United States in 
excluding them. # Moreover, free negroes and mu- 
lattoes were not citizens, in the meaning of that 
word as used in the Constitution of the United 
States. They were not entitled to its protection. 
Whatever privileges they possessed were surely 
local in character. At the time of the formation 
of the Constitution negroes ranked with Indians, 
were not taxed, and were not conceived as belong- 
ing to the class of persons for whom the govern- 
ment, either Sta,te or federal, was organized.! 

* Barbour, of Virginia, December 8, 1820, 
f McLane, of Delaware, December 12, 1820. 

293 



Constitutional History of the American People 

In reply it was said that in the Revolution many 
persons of color bore arms,* and entered the ranks 
as freemen with the whites. Many were made 
free by the States, as an inducement to enlist.t A 
black regiment from Rhode Island won fame for 
the gallant defence of Red Bank. If persons of 
color were intentionally excluded by the national 
Constitution, why did it not read, " We, the white 
people of the United States"? As to the mar- 
riage law of Massachusetts, it interdicted the 
marriage of a white man with a black woman, and 
therefore applied to both races alike. Exclusion 
from the militia, in that State, proved that they 
were in the enjoyment of the right, and that a 
specific law became necessary to deprive them of 
it. All the broad essential rights of citizenship 
were theirs — to hold and convey property, trial 
by jury, the writ of habeas corpus, the elective 
franchise. By the laws and the Constitution 
they were considered as citizens equally with the 
whites. For forty years they had been in the con- 
stant exercise of these rights. To vote in the elec- 
tion of town, county, and State officers, the same 
qualifications of residence and property were re- 
quired from them as from the whites, and, hav- 
ing these qualifications, they had a voice in the 
election of all State officers. Had they, then, no 

* See the first ordinance of Congress relative to free negro 
troops, January 16, 1776; Journal of Congress, Vol. ii. (Folwell's 
edition), p. 27. 

t See Debates in the North Carolina Constitutional Convention 
of 1835, pp. 351-357; also citations by Curtis in his dissenting 
opinion in Scott vs. Sandford, 19 Howard, p. 393. 

294 



No Discrimination in the National Constitution 

federal rights? The national Constitution was 
made for the benefit of the people inhabiting the 
States at the time, and the convention of 1787 did 
not take into consideration the complexion of the 
citizens included in the compact. The black 
citizens of Massachusetts were as directly repre- 
sented as the whites in the process initiatory to 
the federal compact ; from their votes, in common 
with those of the whites, emanated the convention 
of Massachusetts by which the federal Constitu- 
tion was ratified. They were directly represented 
in Congress, for they participated in the election 
of every Massachusetts member on the floor. In 
one district the qualified voters among them had 
actually decided the election of a member of the 
sixteenth Congress. Did not these facts contro- 
vert the claim that they did not exercise federal 
rights in common with other citizens? In at- 
tempting to exclude them, Missouri was palpably 
violating the Constitution of the United States.* 
On the following day the vote was taken, and 
the House rejected the resolution for the admission 
of Missouri by a vote of ninety -three to seventy- 
nine. 

A month passed before the struggle was re- 
newed, and then unexpectedly. Three memorials 
of the Senate and House of Representatives of 
Missouri, respecting the public lands, were pre- 
sented on the 1 ith of January, 182 1, and, next day, 
Cobb, of Georgia, moved to correct the journal so 

* Eustis, of Massachusetts, December 12, 1820. 
2 95 



Constitutional History of the American People 

as to read " the State of Missouri." A short, sharp 
debate followed ; the vote was a tie, and, by the 
vote of the Speaker, Cobb's motion was rejected. 
Parker, of Virginia, was quickly on his feet. As 
the House had refused to acknowledge Missouri 
to be a State, and as she must be a Territory if 
not a State, he moved to correct the journal by 
inserting the words " Territory of " before " Mis- 
souri." Taylor, the Speaker — author of the lately 
defeated restriction — remarked that the rules made 
it the Speaker's duty to examine and correct the 
journal before it was read. In the present instance 
he had thought it proper so to correct the journal 
that it should not be taken either to affirm or deny 
that Missouri was a State, this being a question 
on which the House was greatly divided. The 
question, said Parker, is not one of mere form. If 
Missouri was a Territory, and the House had voted 
she was not a State, why not call her a Territory ? 
" I say she is a State, and were I a citizen of that 
State I would never, at your suggestion, strike 
out that clause in the constitution to which ob- 
jection has been made. If I found it convenient 
to myself to do so, I would ; but I would not do 
it on your recommendation, even for the impor- 
tant boon of being admitted into the Union. I 
would rather be trodden down by the armies of 
the North and East, and, if you could get them, 
from the South, than yield this point. * * # If ever 
on earth a people has been maltreated, it is this 
people." By a vote of one hundred and fifty to 
four, the House rejected Parker's motion to desig- 

296 



Missouri Neither State nor Territory 

nate Missouri as a Territory. In the face of these 
heavy majorities, that she was neither State nor 
Territory, the question was — What was she ? 

Eustis, on the 24th, attempted to surmount the 
obstacle in her path by proposing a resolution 
that she should be admitted on a certain day, 
provided the objectionable clause in her consti- 
tution be expunged,* but, as the same question 
would probably be brought up by a motion to 
amend the resolution in the Senate, Lowndes sug- 
gested that nothing would be gained by this 
course, and the Eustis resolution was rejected by 
a large majority. In the Senate, meanwhile, the 
Missouri question had been exhaustively discussed 
and a different decision reached. On the 29th of 
November the committee to whom the proposed 
constitution was referred reported a resolution 
declaring Missouri admitted, which passed to a 
second reading. Nearly all who spoke on the 
subject from this time declared that every mem- 
ber's mind was made up, and further debate use- 
less. Eaton, of Tennessee, on the 6th of Decem- 
ber, offered a proviso, that nothing in the act for 
admission should be construed as giving the as- 
sent of Congress to any provisions in the consti- 
tution of Missouri, if any there might be, which 
contravened the clause in the Constitution of the 
United States declaring the equality of right of 
citizens of each State to all privileges and im- 
munities of citizens in the several States. This, 

* Art. iii., Sec. 26, in re free negroes, etc. 
297 



Constitutional History of the American People 

at least, guarded Congress, and postponed the day 
of reckoning. Various provisos in the same direc- 
tion were submitted during the discussion. On the 
7th, Eaton's proviso was rejected by a majority of 
three,* and the discussion of the committee's reso- 
lution was resumed. Smith, of South Carolina, in 
a long speech, cited all the precedents to show 
that no condition had been imposed on any of the 
ten new States admitted. In the constitutions of 
all of them only free white males could be elec- 
tors, yet Congress had never objected to the dis- 
crimination, if there was any. More than this, 
New Hampshire and Vermont excluded the negro 
from the militia, and Vermont empowered the 
select -men of the towns to exclude, at their dis- 
cretion, not only negroes and mulattoes, but 
citizens of any description, male or female, of 
other States.! The naturalization laws of the 
United States extended to white persons only, 
and Massachusetts excluded all negroes not sub- 
ject to the Emperor of Morocco, under penalty of 
being whipped.^ New York made provision for 
the exclusion of undesirable inhabitants, with pen- 
alty of fine, imprisonment, and whipping.§ Con- 
necticut had a similar law,|| and its recent con- 
stitution denied citizenship to free negroes and 
mulattoes. ^f 

Was not this mass of evidence conclusive that 

* Twenty-four to twenty-one. 
t Vermont, act of November 6, 1801. 
I Massachusetts, act of March 6, 1788. 
§ New York, act of April 8, 1801. 
|| 1792. IT Constitution, 1818. 

298 



Missouri and the Privileges of Free Negroes 

Missouri only followed precedent in excluding 
whom she did not want, and that the exclusion 
was no more a discrimination than the constitu- 
tions and laws of the older States ? Holmes, who 
had recently taken his seat as a Senator from 
Maine, argued that the privileges and immunities 
of citizens were nowhere extended to free persons 
of color by the Constitution of the United States 
nor by the laws of Congress; that they were con- 
ferred by the States alone ; that Missouri had not 
conferred them; and, therefore, that black citizens 
of other States would acquire no other privileges 
and immunities than her own black population. 
This part of the population being excluded, the 
black citizens of other States might be excluded 
also. 

On the nth Eaton again offered his rejected 
resolution. Morrill, of New Hampshire, cited 
cases in Vermont, New Hampshire, and Massa- 
chusetts where the privileges and immunities of 
citizenship had been exercised by free men of 
color, and reasoned that these alone, though few, 
should be sufficient to reject the admission of 
Missouri. This time Eaton's amendment was 
carried.* 

The Senate resolution was taken up in the House 
seven weeks later.t Clay at once declared for it. 
Lowndes, Randolph, Barbour, and others from 
slave-holding States, announced with equal prompt- 
ness that they should vote against it. Foot, of Con- 



* Twenty-six to eighteen. 



t January 29, 1821, 



299 



Constitutional History of the American People 

necticut, proposed Eustis's resolution to expunge. 
Six other propositions were submitted, but all, in- 
cluding Foot's, were rejected by large majorities.* 
The House would neither adopt the resolution 
of the Senate nor one of its own. All efforts at 
amendment had failed. Missouri was left — neither 
a State nor a Territory. At this point Clay, hop- 
ing to effect some compromise, moved to refer the 
Senate resolution to a special committee of thir- 
teen ; it was appointed,! with himself as chairman, 
and, on the ioth, made its report. It was nearly 
unanimous that no other conditions than those 
already specified in the enabling act should be 
imposed. The settlement of the question ought 
not to be disturbed. As to the clause in the Mis- 
souri constitution affecting free persons of color, 
the same diversity of opinion prevailed in the 
committee as had- prevailed in the House. It 
thought, therefore, that neither side abandoning 
its opinion, a compromise could be effected by 
amending the Senate resolution : Missouri should 
be admitted into the Union upon the fundamental 
condition that she should never pass a law pre- 
venting any description of persons from going to 
and settling in the State who were, or who might 
become, citizens of any State in the Union. When, 
by a solemn public act, the Legislature of Mis- 

* Mostly on February ist. 

t The committee consisted of : Clay, Kentucky ; Eustis, Massa- 
chusetts ; Smith, Maryland; Sergeant, Pennsylvania; Lowndes, 
South Carolina; Ford, New York; Archer, Virginia; Hackley, 
New York; S. Moore, Pennsylvania; Cobb, Georgia; Tomlinson, 
Connecticut ; Butler, New Hampshire ; Campbell, Ohio. 

300 



The Truth Concerning Clay's Compromises 

souri, before the 4th of November, should sub- 
scribe to this condition and communicate its 
assent to the President, he should proclaim the 
fact, and the admission of the State should there- 
by be complete without further action of Congress. 

This was the compromise of 1820, with which 
the name of Henry Clay is associated. Contrary 
to the notion which has long prevailed, his part in 
the series of compromises of that year bore little 
upon the establishment of the line of 36 30', and 
less upon the efforts of the Free-soilers to exclude 
slavery from the new States. His was the com- 
promise on admission, not on slavery. Measured 
by his own idea of State sovereignty, the solemn 
public act which should be exacted from the Mis- 
souri Legislature was not beyond repeal by a sub- 
sequent Legislature, and, twenty years later, it was 
practically repealed by the laws of the State pro- 
hibiting the immigration of free negroes, under 
heavy penalties,* followed by a more severe act 
three years later. But Clay's compromise was an 
immediate solution of the sectional question which 
now threatened the dissolution of the Union. 

On the 12th the House took up the report, in a 
debate which went over familiar ground. After 
rejecting several proposed amendments, the House, 
by a vote of eighty -three to eighty, rejected the 
Senate resolution and Clay's amendment. On the 
13th the vote was reconsidered, and the commit- 
tee's report was again before the House. General 

* Missouri, acts of February 23, 1843; February 16, 1846. 

301 



Constitutional History of the American People 

Pinckney, of South Carolina, produced some new 
evidence in favor of Missouri. The objectionable 
clause in its constitution, he declared, was not re- 
pugnant to the Constitution of the United States. 
" It appears by the journal of the convention that 
formed the Constitution of the United States," 
said he, " that I was the only member of that body 
that ever submitted the plan of a constitution com- 
pletely drawn in articles and sections; and this 
having been done at a very early stage of their 
proceedings, the article on which now so much 
stress is laid, and on the meaning of which the 
whole of this question is made to turn, and which 
is in these words, ' the citizens of each State shall 
be entitled to all privileges and immunities in every 
State,' having been made by me, it is supposed I 
must know, or perfectly recollect, what I meant by 
it. In answer, I say that, at the time I drew that 
Constitution, I perfectly knew that there did not 
then exist such a thing in the Union as a black or 
colored citizen, nor could I then have conceived it 
possible such a thing could ever have existed in it ; 
nor, notwithstanding all that is said on the subject, 
do I now believe one does exist in it."* Pinckney 

* Pinckney 's belief that he submitted such a plan to the federal 
convention is indisputable. It appears by the journal and Madi- 
son's note that he submitted a plan on May 29th. That it was not 
the Constitution as adopted, and that the Constitution contains 
provisions at variance with Pinckney 's ideas, are dwelt on by 
Madison (Elliot, Vol. v., p. 578). There is no evidence, other 
than the above speech, that Pinckney was the author of the 
article he quotes. He was speaking from memory, of one provi- 
sion made in a constitution thirty-four years before. The inten- 
tion of a constitutional convention is usually difficult to fix, and 

302 



Firm Stand of the Restrictionists 

then proceeded to prove that free persons of color 
were not citizens of the United States; that the 
race had never possessed the rights of white men ; 
that it was incapable of exercising them; and that 
its exclusion from citizenship conformed to the 
course of history and the will of God. 

At this stage of the question the restrictionists 
were accused of breach of faith — that they had 
secured Maine and would not keep their word with 
Missouri. There is no doubt that the Free-soilers 
had not changed their opinions. They did not in- 
terpret the admission of Maine as free soil as an 
obligation on them to support slavery in Missouri. 
They believed that they had broken the combina- 
tion of the admission of the two States in one bill. 
They wished now to exclude slavery from Mis- 
souri, and from all other territory of the United 
States, forever. In vain Clay pleaded for his reso- 
lution. It was again rejected, and by a larger vote 
than before.* 

The day for counting the electoral vote for Presi- 
dent and Vice-President was approaching. Mis- 
souri had chosen three electors, and their votes had 
been received by the President of the Senate. 
Clay, on the 4th of February, in order to antici- 
pate and allay a possible tumult, proposed a reso- 

that of one member, in shaping a particular provision, is usually 
merged in a mass of opinions difficult to separate. Once adopted, 
a constitution depends for its interpretation as much on current 
necessity as on the original intentions of its members. This is, 
theoretically, a question for the courts; but, practically, it is one 
for politics and administration. 
* Eighty-eight to eighty-two. 

303 



Constitutional History of the American People 

lution relative to the counting of the vote, that if 
any objection be made to the vote of Missouri, the 
President of the Senate should declare the result 
that would follow if its votes were counted and if 
they were not counted. This method of reaching 
what Randolph at once called a special verdict 
precipitated another debate, but was carried, though 
with apprehension, in both Houses.* Thus a pos- 
sible omission in the Constitution was temporarily 
supplied. As the electoral vote stood, Monroe 
and Tompkins were chosen, and the vote of Mis- 
souri could not change the result. But if its vote 
was counted it must be as that of a State. All 
who claimed this to be the condition of Missouri, 
therefore, insisted on the inclusion of its three 
electoral votes. 

The electoral vote was counted on the 14th. 
Both Houses, as the Constitution requires, assem- 
bled in the Representatives' chamber, and the 
count was begun under the usual forms. As the 
vote of Missouri was announced, Livermore, a 
member from New Hampshire, arose, and, amid 
some confusion, objected to receiving it because 
Missouri was not a State. A tumult began, and all 
likeness to a deliberative body vanished. Above 
the din of voices a Senator was heard to move that 
the Senate withdraw, and the House was quickly 
left alone to wrangle the matter into some conclu- 
sion. After more than an hour of confusion such 
as can arise only in a great parliamentary body, 

* In the House of Representatives, February 4th, by a vote of 
ninety to sixty-seven. In the Senate, February 9th. 

3°4 



A Straining of Parliamentary Procedure 

Floyd, of Virginia, succeeded in submitting a res- 
olution that Missouri was a State and its vote 
should be counted. Something must be done. 
The House was at the brink of a precipice. An- 
other step might hurl the government into de- 
struction. " I have gone as far as I can go in the 
way of compromise," said he; "if there is to be a 
compromise beyond that point, it must be at the 
edge of the sword." Randolph went back to what 
he called " first principles," and advanced the ex- 
traordinary notion that the Electoral College was 
as independent of the House as the House was 
independent of the College, and that each had the 
right to determine the qualifications of its own 
members. The House had only a ministerial 
office in counting the votes. But this set of 
"first principles" appeared to be of Randolph 
rather than of the Constitution. Clay came to 
the rescue with a pacific motion to lay Floyd's 
resolution on the table and proceed with the 
count. This at last prevailed,* and a message 
was sent to the Senate that the House was pre- 
pared to receive it, "for the purpose of continuing 
the enumeration of the votes of the electors for 
President and Vice-President." 

The Senate accordingly again filed in, resumed 
its seat, and the President, in pursuance of the reso- 
lution adopted by both Houses, announced that 
were the vote of Missouri to be counted the result 
would be two hundred and thirty -one votes for 

* By a vote of one hundred and three. 
i.— u 305 



Constitutional History of the American People 

Monroe for President and two hundred and eigh- 
teen for Tompkins for Vice - President. If not 
counted, each would receive three less. In either 
case, Monroe and Tompkins had a majority of the 
electoral vote. 

Before the announcement was finished, Floyd 
was inquiring whether the vote of Missouri was 
counted. His voice was drowned by cries of " Or- 
der! Order!" Randolph arose. The cries be- 
came louder. The Speaker pronounced Randolph 
out of order and invited him to take his seat. He 
did not obey. Members were screaming that Ran- 
dolph be heard and that he sit down. Order was 
restored; the President of the Senate concluded 
his announcement of the result of the vote, and 
Randolph again addressed the chair. The confu- 
sion increased ; the Seriate withdrew, and the 
House was called to order. Randolph was still 
standing and addressing the chair. Few could 
hear him above the noise. There had been no 
election, he shouted, because the whole electoral 
vote had not been counted. He was writing reso- 
lutions to this effect when, amid great excite- 
ment, the House adjourned. The counting of the 
electoral vote was evidence that Missouri was not 
a State. Happily the decision did not turn on its 
three votes. It was an inopportune time for a dis- 
puted election. 

On the next day, Clark, of New York, moved 
that Missouri be admitted on the first Monday in 
December, provided, before that time, the objec- 
tionable clause in its constitution be expunged. 

306 



Clay's Efforts for Peace 

On Clay's motion, this resolution was laid on the 
table without discussion. It had been proposed 
before. What ground for hope was there that it 
would succeed now? Brown, of Kentucky, on the 
21st, put into a resolution which he submitted the 
ideas of many who were accusing the restriction- 
ists of a breach of faith. The enabling act for 
Missouri should be repealed. This would bring 
Congress back to the place of beginning. Would 
another act be framed with a clause prohibiting 
slavery from any part of the Western country? 
The pro -slavery men would thus be able to test 
the integrity of the restrictionists. But the House 
decided not to take up the resolution. 

Meanwhile another effort for peace was in prog- 
ress, and, on the 2 2d, Clay moved for the appoint- 
ment of a grand joint committee, and that the 
House elect twenty-three members by ballot. Not 
until the 24th was its membership settled. On 
this day the Senate concurred and appointed seven 
members.* 



* The committee consisted of: — Members of the House — Clay, 
Kentucky; Cobb, Georgia ; Hill, Maine; Storrs, New York; Cocke, 
Tennessee; Rankin, Mississippi; Archer, Virginia ; Brown, Ken- 
tucky; Eddy, Rhode Island; Ford, New York; Culbreth, Maryland; 
Philip P. Barbour, Virginia; Hackley, New York; S. Moore, 
Pennsylvania; Stevens, Connecticut ; Rogers, Pennsylvania; H. 
Southard, New Jersey ; Darlington, Pennsylvania ; Pitcher, New 
York; Sloan, Ohio; Randolph, Virginia; Baldwin, North Caro- 
lina; Smith, North Carolina. Members of the Senate — Holmes, 
Maine ; James Barbour, Virginia ; Morrill, New Hampshire ; S. L. 
Southard, New Jersey ; Johnson, Kentucky ; King, New York ; 
Roberts, Pennsylvania. S. L. Southard was President pro tern. 
of the Senate ; he was the son of Henry Southard, of the House. 
Father and son voted alike on the Missouri Compromise. 

307 



Constitutional History of the American People 

The report of this committee was delivered on 
the 28th, and was in substance that of the former 
committee of thirteen. Again there followed a 
sharp discussion in the House, and a vote was 
taken. The report was carried by four votes.* 
In the Senate, three days later, it passed by a vote 
of two to one.t On the 2d of March it became a 
law. In June the Missouri Legislature complied. 
In August the President's proclamation issued, and 
the Missouri struggle was over. 

At the root of the Missouri Compromise lay a 
federal question which, for the first time in the 
history of American democracy, demanded solu- 
tion: What authority has the government of the 
United States, under the Constitution, to impose 
restrictions on a Territory or a State? Could 
Congress restrict slavery? Essentially, the ques- 
tion was one of sovereignty. 

What was this Union? A confederation of 
States equal in sovereignty, capable of everything 
which the Constitution does not forbid or which it 
does not authorize Congress to forbid. The chief 
purpose of the union was the common protection 
of the sovereignty already existing in the States. 
The parties to the Union — the States — had given 
up a portion of their sovereignty to insure the re- 
mainder. Means were provided for defining this 
residuary sovereignty. The Union was a com- 
pact Whether old or new, a State was equally 
sovereign with the other States. Territorial con- 

* Eighty-six to eighty-two. t Twenty-eight to fourteen. 

308 



Federal Restrictions and the Rights of States 

sent signified nothing ; only a State could decide 
as to its own sovereignty. This sovereignty was 
a constant quantity, incapable of being diminished 
by the Union without the consent of the State. 
Therefore the federal government had no power 
to impose restrictions on a State. Slavery restric- 
tion, except by a State, was, therefore, unconstitu- 
tional. Whatever his change of residence, a slave 
remained a slave. He was property — nothing more, 
nothing less — and his condition was not a subject 
of Congressional legislation. The States alone 
could legislate concerning him. They alone as 
sovereigns, controlling their domestic affairs, could 
establish freedom or slavery. As the oppo- 
nents of the admission of Missouri did not de- 
mand the abolition of slavery there, they must 
thereby admit that it existed by authority; for 
them to claim that it should be restricted to Mis- 
souri was merely a contradiction of their own 
views. If they did not wish to abolish it, by what 
authority would they seek to restrict it? The 
opponents of slavery must, therefore, in order to 
be consistent, either abandon their doctrine of the 
legality of the restriction of slavery or their doc- 
trine of abolition. Slavery was the natural state 
of the African from the dawn of history. Consti- 
tutions, written and unwritten, confirmed it. That 
of the United States recognized it, and those of 
most of the commonwealths also. Equality among 
the States depended on its recognition and contin- 
uance. Being a domestic institution, it was wholly 
without the sphere of federal government, except as 

309 



Constitutional History of the American People 

that government was established and obligated to 
protect the States. Slavery was not inconsistent 
with a republican form of government. The people 
of a State could, at their will, establish or destroy 
slavery; it was merely a result of legislation. The 
form was one thing, the law quite another. Uni- 
versal suffrage was not sanctioned by all the free 
States ; they disfranchised for poverty as much as 
the slave-holding States disfranchised for race and 
color. The disqualified, whether they were slave 
or free, obeyed the laws, but they had no share in 
making them. Were the governments of these 
free States republican in form? The Constitution 
of the United States made no requirements for 
electors other than those prescribed by the sev- 
eral States ; if it could prescribe these, " the 
Union might be reduced from a union to a 
unit." 

But it was said that the clause providing for 
the suppression of the slave-trade after 1808 
proved that Congress had power to impose re- 
strictions on slavery. " Migration " applied to 
freemen only, and was synonymous with importa- 
tion. If Congress could prevent the migration of 
slaves from State to State, why not from county 
to county within the State? — from plantation to 
plantation ? — from house to house ? The clause 
only authorized Congress to forbid the migration 
or importation of slaves from a foreign jurisdiction 
into any of the United States. Slaves were prop- 
erty ; slavery, a domestic question to be settled by 
each sovereign State to suit itself. These ideas 

310 



Congressional Powers to Prohibit Slavery 

were advocated by the party that stood for the 
doctrines of '98.* 

But there was another side to the question. 
The Constitution empowered Congress to make 
all needful rules and regulations respecting the 
Territory and other property of the United States. 
It could, therefore, prohibit slavery in the Terri- 
tories, and as Missouri was organized out of the 
purchase from France, the restriction of slavery 
within it was clearly within the authority of Con- 
gress. The power to admit new States implied 
the right to determine the conditions of admis- 
sion. Congress could admit or not, at its discre- 
tion. When admitted, a new State stood on a 
footing with the old, and its citizens were entitled 
to all the immunities and privileges of citizens in 
the several States. As Congress could affix con- 
ditions to admission, it could prohibit slavery for- 
ever in a new State. In proof of this were the 
Ordinance of 1787 and the prohibition of slavery 
in Ohio, Indiana, and Illinois. If the people of 
Missouri were permitted to enjoy the privileges 
of citizens of the several States, why should the 
citizens of these States be denied similar privileges 
in Missouri? By the treaty of 1803, the property 
of the inhabitants of Missouri was to be protected. 
Only an exceptional use of this word could bring 
slaves within its meaning. As Congress could ex- 
clude slavery from a State at the time of its ad- 
mission, the State sovereignty would be bound by 

* The ablest speech on this side of the question was made by 
William Pinkney, of Maryland, in the Senate, February 15, 1820. 

3ii 



Constitutional History of the American People 

the condition. Even a sovereign power could not 
do an unlawful act. There was, however, a larger 
view. Slavery could be excluded from Missouri 
on the ground of promoting the common defence, 
the general welfare, and that wise administration 
of government which, as far as possible, produces 
an impartial distribution of benefits and burdens 
throughout the Union. Slavery impoverishes a 
country and makes its defence both more expen- 
sive and difficult. It weakens the power of self- 
protection, and should therefore be restricted. 
Moreover, it was the cause of a violation of the 
equity of representation, because in a free State 
thirty-five thousand persons were required to elect 
a Representative, while in a slave State the num- 
ber wa3 only twenty -five thousand five hundred 
and fifty-nine. Five free persons in Virginia had 
as much power as seven in New York in the 
choice of Representatives to Congress. Nor was 
this an end of violence. Slavery impaired the 
industry, and therefore the power, of the nation, in 
proportion to the multiplication of slaves. If the 
laborers of a State were slaves, it could not raise 
soldiers nor recruit seamen. Manufactures never 
prosper where workmen are slaves. In case of 
war, slaves weakened the country, because they 
displaced freemen and increased the number of 
things to be protected. It was for the purpose of 
extending free government that provision was 
made for the admission of new States. Slavery 
existed in States contiguous to one another. If 
extended across the Mississippi into the great 

312 



Endangering the Fundamentals of Freedom 

West, both the repose and the security of the 
nation would be endangered. Slave - markets 
would multiply; the principles of freedom would 
be weakened ; the nation would have a feeble, be- 
cause a slave-holding, frontier. The extension of 
slavery meant the exclusion of citizens of the 
United States. These, under the Constitution, had 
citizen's privileges in the several States, but if 
slavery were permitted in the new States, free per- 
sons of color would be the object of discrimina- 
tion. Its extension beyond the Mississippi was 
unconstitutional, because this part of the country 
was exempted from conditions imposed on the 
original States. They came into the Union with 
slavery; in the West slavery did not exist as a 
prior condition of admission into the Union.* 

As the Missouri question comprehended the 
fundamentals of representative government under 
the American system, it drew opinions from men 
in all conditions of life. An index to contem- 
poraneous material on the subject would make a 
respectable book. In a private letter,! John Jay 

* The ablest speech for restriction was made by Rufus King, 
of New York, in the Senate, February n, 1820. His speech was 
not reported in the annals. He afterwards wrote it out for 
publication. See Papers Relative to the Restriction of Slavery ; 
speeches of Mr. King in the Senate, and of Messrs. Taylor and 
Tallmadge in the House of Representatives of the United States 
on the bill for authorizing the people of the Territory of Missouri 
to form a constitution and State government, and for the admis- 
sion of the same into the Union, in the session of 1818-19, with 
the report of the Committee of the Abolition Society of Delaware. 
Philadelphia : Printed by Hall & Atkinson, 53 Market Street, 18 19. 

t To Elias Boudinot, November 17, 1819. Jay was at this time 
president of the American Abolition Society. 

313 



Constitutional History of the American People 

expressed the opinion that slavery should not be 
permitted in any of the new States ; that it ought 
gradually to be abolished in all ; that the power 
of Congress to prohibit the importation and mi- 
gration of slaves was unquestionable, and applied, 
at its discretion, alike to old and new States ; that 
slavery was repugnant to the principles of the 
Revolution, and that, from a consciousness of the 
repugnancy, the doctrines of the Declaration of 
Independence were held as self-evident truths. A 
few days after this letter was written the leaders 
of public opinion in Boston assembled in the 
State House,* and with the approval of a great 
public gathering drew up a memorial against the 
further extension of slavery. It was written by 
Webster and expressed the prevailing opinion of 
New England. Doubtless it was Webster's opinion 
at that time. It elaborated the thought that the 
power to regulate commerce gave Congress com- 
plete authority to regulate, and therefore to re- 
strict, slavery. Just six days before Webster wrote 
this memorial, Madison, in one of his most care- 
fully considered letters.! gave his own views on 
slavery restriction, and anticipated the decision in 
the Dred Scott case by declaring that the restric- 
tion of slavery by Congress, and by this he meant 
the Missouri Compromise, would be unconstitu- 
tional. 

Little was added, in later times, to the argu- 
ments presented during the three years of the 

* December 3, 1819. 

t To Robert Walsh. Madison 's Works, Vol. iii., p. 149. 

314 



A Retrospection 

Missouri struggle. Read to-day, when slavery is 
a thing of the past, they seem needlessly and 
heartlessly cruel, legal, and merely textual. The 
doctrine of '98 was in the saddle. Things, not 
men, were the basis of government. Civil and 
political institutions seem a legal fiction, the 
national Constitution only a document, or bond, 
whose execution was in pounds of human flesh. 
Behind this slavocratic tyrant loomed other tyrants 
even more formidable — the laws and the consti- 
tutions of commonwealths, and the cruel exactions 
and prejudices of public opinion. 



CHAPTER XI 

BEYOND THE MISSISSIPPI 

The authority of Congress to prescribe condi- 
tions for a Territory* was further illustrated by the 
act of 1832!, limiting the franchise in Arkansas 
to free white males. Of the slave-holding States, 
North Carolina alone, by its constitution, recog- 
nized the right in free persons of color to vote, and 
public sentiment there was soon to be gratified by 
the abrogation of the right4 A like change was 
in sight in Tennessee.§ A slave-holding democ- 

* The principal authorities for this chapter are the statutes at 
large and the records of the conventions referred to. 

fMay 31st. 

I See Proceedings and Debates of the Convention of North 
Carolina called to amend the Constitution of the State, which 
assembled at Raleigh June 4, 1835, to which are subjoined the 
Convention Act and the Amendments to the Constitution, 
together with the Votes of the People. Raleigh : Printed by 
Joseph Gales & Son, 1835, PP- 351-358. Also, Sec. iii., p. 421. 
The provision of the constitution of 1776, vii., viii., allowing "all 
freemen " (otherwise qualified) " to vote " was modified in 1835 so 
as to exclude every " free negro, free mulatto, or free person of 
mixed blood descended from negro ancestors to the fourth gen- 
eration, inclusive." 

§ Compare Constitution of Tennessee, 1796, Art. iii., Sec. i., 
with that of 1834, Art. iv., Sec. i. "Every freeman" changed to 
"every free white man." See, also, Studies in the Constitutional 
History of Tennessee, by Joshua W. Caldwell. Cincinnati : The 
Robert Clarke Company, 1895, p. 113. 

316 



Making the Arkansas Constitution 

racy must of necessity be a white-man's govern- 
ment. When, on the 4th of January, 1836, the 
people of Arkansas met in convention at Little 
Rock to form a constitution, they had before them 
as recent precedents the exclusion of free blacks 
from the franchise in North Carolina and Ten- 
nessee, and, practically, their exclusion from the 
basis of representation. The constitution was 
completed on the 30th, was approved without 
delay by Congress, and the State was admitted in 
the middle of June. On the 23d of June a generous 
grant was made of school lands and salt-springs, and 
a five per cent, donation for public roads and canals. 
Fifteen sections were given to complete the public 
buildings at Little Rock, and two townships for a 
university. These donations were formally ac- 
cepted by the General Assembly in October, under 
promise never to tax the property of the general 
government, or discriminate in taxation against 
that of non-residents. The new State, in its con- 
stitutional outlines, was a duplication of Alabama 
and Mississippi. There could not be a great vari- 
ation from the type in any pro -slavery constitu- 
tion. 

Immigrants had for several years been appearing 
west of the Mississippi and north of Missouri, but 
they were not yet sufficiently numerous to warrant 
the organization of a new Territory; therefore, in 
1834 the region, indefinite in boundary, north of 
Missouri was attached to the Territory of Michigan. 
Two years later the northern boundary line of 
Ohio was in the way of settlement, and the people 

317 



Constitutional History of the American People 

of Michigan were authorized to organize a State 
government. The Detroit convention rejected the 
boundary named in the enabling act, but a sup- 
plementary one practically removed all obstacles. 
Michigan acquiesced on the 15th of December, and 
was admitted on the 26th of January following.* 
The Arkansas constitution followed the Southern 
type ; that of Michigan the Northern, being in 
outline like those of Ohio, Indiana, and Illinois. 
These four States of the Northwest followed the 
model of New York, as their four contemporaries 
of the Southwest did that of Virginia. 

It seemed at this time that the vast region north 
of the Red River and west of Arkansas and Mis- 
souri was destined to remain a wilderness for many 
generations. The pressure of population east of 
the Mississippi seemed now in part to cease. 
Powerful Indian tribes, which, a few years before 
the Missouri Compromise, stood in the path of 
immigration, had sold their lands meanwhile, and 
disappeared, at least for a time, across the great 
river. With others that yet remained on their 



* See especially the following authorities bearing on this sub- 
ject : Journal of the Proceedings of the Convention to form 
a Constitution for the State of Michigan, begun and held at 
the Capitol, in the City of Detroit, on Monday, the nth day of 
May, A. d. 1835. Detroit: Printed by Sheldon McKnight, 1835. 
Index — Boundary. Appeal by the Convention to the People of 
the United States, with other Documents in relation to the 
Boundary Question between Michigan and Ohio. Detroit: 1835. 
Journal of the Convention held September 26-30, 1836, to Con- 
sider Admission into the Union. Pontiac : 1836. Journal of the 
Convention held December 14-15, 1836, to give Assent required 
by Act of Congress previous to Admission. Ann Arbor : 1836. 

318 



Inauguration of an Indian Policy 

ancient hunting-grounds, negotiations were in 
progress, and their removal was impending. But 
the negotiations seemed slow to the thickening 
line of frontiersmen clamoring for land. 

On the last day of June, 1834, Congress set 
apart as the Indian Country all the unorganized 
public domain west of the States. This proved to 
be the great organic act in the history of the tribes, 
for it began a new Indian policy. From this time 
began the process of gathering the Indians into 
reservations. At first the vast unorganized West 
comprised one. As time passed and Territories 
were organized, reservations were increased in 
number and diminished in size. An Indian policy 
was begun which, before the century closed, was 
to scatter, yet to concentrate, the tribes ; to break 
up their organization, and gradually to force an 
exchange of Indian title for annuities, or for other 
lands, or for lands in severalty. 

Technically, in 1834, the Indian Country lay 
east as well as west of the Mississippi, for it includ- 
ed all lands to which the Indian title had not been 
extinguished. For judicial purposes, this country 
was attached to Missouri. One great purpose of 
the act was to exclude the whites from the reserva- 
tion. It could be entered only by the agents of 
the national government. At the same time a 
Department of Indian Affairs was created, under 
charge of a commissioner. The public, ignoring 
the correct title of the reservation, called it the 
Indian Territory, and the popular name was soon 
sanctioned by the department and by the Presi- 

3*9 



Constitutional History of the American People 

dent. There has never been an organized Indian 
Territory.* 

The States, about this time, began accurate sur- 
veys of their boundaries. Congress, in 1831, or- 
dered the survey of the line between Alabama and 
Florida, and between Illinois and the Territory of 
Michigan. Usually, the enabling act described 
the boundaries of a new State, but, at best, only 
approximately. Maps were inaccurate, and actual 
surveys were necessary to establish the lines. The 
new States, like the old, soon had boundary dis- 
putes on hand. The admission of Michigan left 
the region to the west for Territorial organization, 
and, early in 1836,! Wisconsin was given a govern- 
ment, modelled after those already familiar in the 
old Northwest. In one respect, however, there 
was a departure. Members, both of the Council 
and the House, were chosen by the voters. On 
the 2d of July, Congress directed the surveyor- 

* The lands within it were granted, at various times, to the Ind- 
ians — in 1838, a portion, by patent, to the Cherokees ; in 1842, 
another portion, by patent, to the Choctaws ; in 1852, the remain- 
der, by patent, to the Creeks. These patents included lands 
within the present boundary of Kansas. By these patents the 
land was conveyed in fee forever. Many other tribes have been 
moved into the territory and lands assigned them by treaty. 
During the first half of the century the tribes were not disturb- 
ed. They were treated as separate and independent nations. 
Treaties were made by the War Department. The Indian Com- 
missioner was in that department until 1849, when the Depart- 
ment of the Interior was created, and the Indian Bureau was trans- 
ferred to it, where it has remained. See Report on Indians Taxed 
and Indians Not Taxed in the United States (except Alaska) at 
the Eleventh Census: 1890. Washington, D. C. : Government 
Printing-office, 1894, pp. 1-69. 

t April 20th. 

320 



Building Up the Western Cities 

general to lay out designated tracts of land as 
towns. Madison, Burlington, and Dubuque were 
thus laid out into in-lots, with streets, avenues, and 
public squares. The lots were arranged in three 
classes — the first to be sold at the rate of forty 
dollars an acre, the second at twenty, the third at 
ten. A purchaser could not acquire more than 
one acre. These town-surveys were the subject of 
several amendatory acts — as that of 1838,* which 
provided for a Territorial surveyor, who should 
follow the precedents set by the surveyor of Ohio. 
His office was at Dubuque. Usually a Territorial 
survey has gone no further than that of town- 
ships and counties. The survey now ordered was 
extended west of the Mississippi. 

The act provided also for the survey of the 
boundary between Wisconsin and Michigan. Two 
townships were set apart by Congress for the sup- 
port of a university ; a grant was made for public 
buildings, and another in aid of a canal to connect 
Lake Michigan and Rock River.t Wisconsin re- 
sembled Alabama in the rapidity with which popu- 
lation poured in. The Territory was soon divided, 
and the name Iowa given to the southwestern part.ij: 
The old Northwestern model was again followed, 
but Iowa had a new feature in the Congressional 
appropriation of five thousand dollars to be ex- 

* June 12th. t June 18th. 

\ June 12, 1838. See Iowa City, a Contribution to the Early- 
History of Iowa, by Benjamin F. Shambaugh, M.A. ; State His- 
torical Society of Iowa, Iowa City, Iowa, 1893. Also, Docu- 
mentary Material Relating to the History of Iowa, edited by 
Benjamin F. Shambaugh, A.M., Ph.D.; Historical Society, etc. 
1. — x 321 



Constitutional History of the American People 

pended in books for the use of the Territorial of- 
ficers. The survey of the southern boundary 
was ordered,* and the usual land grant was made. 
A year laterf the Legislature defined the eastern 
boundary, along the middle of the main channel 
of the Mississippi, and declared it under concur- 
rent jurisdiction with Wisconsin. 

The organization of new Territorial govern- 
ments barely kept pace with the movements and 
demands of population. By the removal of the 
Indians, the East experienced a great relief — and 
the East now began at the Mississippi. In ten 
years' the frontier had moved more than two hun- 
dred and fifty miles north and northwest, in Ohio, 
Michigan, Indiana, Illinois, and Wisconsin. The 
new-comers were chiefly from New England, New 
York, and Pennsylvania, but Ohio was rapidly be- 
coming a parent of States. In the same period 
similar changes had gone on in the Southwest. 
The Indian tribes, so long elements of discord in 
surveyed Alabama and Mississippi, were now in 
the Indian Country, and a prosperous population 
was in possession of their ancient lands, save the 
desolate pine barrens of Georgia and the swamps 
of Western Mississippi. The unoccupied portions 
of Arkansas and Missouri were dense forests and 
impassable swamps. The entire Southern coun- 
try, which had gone into private ownership since 
1820, was less accessible than the new country of 
the North and Northwest. Michigan, Wisconsin, 

* June 1 8th. t March 3, 1839. % 1830 to 1840. 

322 



Transportation the Need of the Time 

and Iowa were easily accessible, and their settled 
parts were in a prairie country. Heavy timber 
was yet abundant in New York and Pennsylvania ; 
the forests of Michigan and Wisconsin were not 
to be converted into lumber camps till the Eastern 
supply of lumber began to fail. As there was no 
market for timber that stood far from great water- 
ways, the settlements in the timber districts, North 
and South, like those first made in the colonies, 
were in the most accessible valleys and near the 
great lakes — the natural highways of the country. 
Population was increasing most rapidly at the cen- 
tres of trade, and among these were Cincinnati, 
Louisville, Detroit, and Chicago. All the coast 
cities having harbors suited to the increasing draft 
of ships, and the cities along the Erie canal, were 
growing beyond precedent. Interstate commerce 
was by waterways and wagon-roads. States were 
competing with one another for the carrying-trade 
from the West to the Atlantic seaboard. Every- 
where internal improvements were demanded, and 
in most cases beyond the ability of the States to 
construct and to maintain. The statute-books 
were swelling with acts for the construction of 
canals that would connect the great lakes with 
the Ohio, the Ohio with the Delaware and with 
Chesapeake Bay, and the larger eastern tribu- 
taries of the Mississippi one with another. Other 
acts proposed wagon -roads and railroads aggre- 
gating thousands of miles, connecting rivers and 
canals, and weaving a vast net- work of highways 
over the whole country. Creeks were to be en- 

323 



Constitutional History of the American People 

larged into rivers. Political careers were made, 
broken, and mended by the army of office-seek- 
ers who, especially in the newer States, were 
loudly advocating internal improvements. The 
great West was rapidly mortgaging its credit for 
roads, bridges, railroads, and canals. Was not the 
State bound to receive vast accessions to its popu- 
lation ? How were people to reach it? Build 
roads, bridge streams, issue bonds, and borrow 
money. Immigration would pour in, and the in- 
crease of taxable property would pay the debt. This 
was the stock argument. Lincoln used it in 1832, 
when first he stumped the New Salem district as 
" an avowed Henry Clay man." His circular let- 
ter which began his political career admits us, 
without reserve, into the secrets of his ambition 
and the wants of the West. It is the voice of the 
people living in the great valley. 

Address to the People of the Sangamon County* 

Fellow-citizens, — Having become a candidate for the 
honorable office of one of your Representatives in the next 
General Assembly of this State, in accordance with an estab- 
lished custom and the principles of true Republicanism, it 
becomes my duty to make known to you, the people whom 
I propose to represent, my sentiments with regard to local 
affairs. 

Time and experience have verified to a demonstration the 
public utility of internal improvements. That the poorest 
and most thinly populated countries would be greatly bene- 
fited by the opening of good roads, and in the clearing of 

* Abraham Lincoln : Complete Works. Edited by John G. 
Nicolay and John Hay. Vol. i., pp. 1-4, 7. 

3 2 4 



Lincoln on Transit in the West 

navigable streams within their limits, is what no person will 
deny. Yet it is folly to undertake works of this or any other 
kind without first knowing that we are able to finish them — 
as half-finished work generally proves to be labor lost. There 
cannot justly be any objection to having railroads and canals, 
any more than to other good things, provided they cost noth- 
ing. The only objection is to paying for them ; and the ob- 
jection arises from the want of ability to pay. 

With respect to the county of Sangamon, some more easy 
means of communication than it now possesses, for the pur- 
pose of facilitating the task of exporting the surplus products 
of its fertile soil, and importing necessary articles from abroad, 
are indispensably necessary. A meeting has been held of the 
citizens of Jacksonville and the adjacent country, for the 
purpose of deliberating and inquiring into the expediency of 
constructing a railroad from some eligible point on the Illi- 
nois River, through the town of Jacksonville, in Morgan 
County, to the town of Springfield, in Sangamon County. 
This is, indeed, a very desirable object. No other improve- 
ment that reason will justify us in hoping for can equal in 
utility the railroad. It is a never-failing source of communi- 
cation between places of business remotely situated from each 
other. Upon the railroad the regular progress of commer- 
cial intercourse is not interrupted by either high or low water 
or freezing weather, which are the principal difficulties that 
render our future hopes of water -communication precarious 
and uncertain. 

Yet, however desirable an object the construction of a rail- 
road through our country may be, however high our imagina- 
tions may be heated at thoughts of it, there is always a heart- 
appalling shock accompanying the amount of its cost, which 
forces us to shrink from our pleasing anticipations. The 
probable cost of this contemplated railroad is estimated at 
$290,000; the bare statement of which, in my opinion, is suf- 
ficient to justify the belief that the improvement of the San- 
gamon River is an object much better suited to our infant re- 
sources. 

Respecting this view, I think I may say, without the fear 
of being contradicted, that its navigation may be rendered 

325 



Constitutional History of the American People 

completely practicable as high as the mouth of the South 
Fork, or probably higher, to vessels of from twenty -five to 
thirty tons burden, for at least one-half of all common years, 
and to vessels of much greater burden a part of the time. 
From my peculiar circumstances, it is probable that for the 
last twelve months I have given as particular attention to the 
stage of the water in this river as any other person in the 
country. In the month of March, 1831, in company with 
others, I commenced the building of a flat-boat on the San- 
gamon, and finished and took her out in the course of the 
spring. Since that time I have been concerned in the mill 
at New Salem. These circumstances are sufficient evidence 
that I have not been very inattentive to the stages of the 
water. The time at which we crossed the mill-dam being in 
the last days of April, the water was lower than it had been 
since the breaking of winter in February, or than it was for 
several weeks after. The principal difficulties we encoun- 
tered in descending the river were from the drifted timber, 
which obstructions all know are not difficult to be removed. 
Knowing almost precisely the height of water at that time, 
1 believe I am safe in saying that it has as often been higher 
as lower since. 

From this view of the subject, it appears that my calcula- 
tions with regard to the navigation of the Sangamon cannot 
but be founded in reason ; but, whatever may be its natural 
advantages, certain it is that it never can be practically use- 
ful to any great extent without being greatly improved by 
art. The drifted timber, as I have before mentioned, is the 
most formidable barrier to this object. Of all parts of this 
river, none will require so much labor in proportion to make it 
navigable as the last thirty or thirty-five miles ; and going with 
the meanderings of the channel, when we are this distance 
above its mouth we are only between twelve and eighteen miles 
above Beardstown in something near a straight direction ; and 
this route is upon such low ground as to retain water in many 
places during the season, and in all parts such as to draw 
two-thirds or three-fourths of the river water at all high stages. 

This route is on prairie land the whole distance, so that 
it appears to me, by removing the turf a sufficient width, and 

326 



A Condemnation of Usurious Practices 

damming up the old channel, the whole river in a short time 
would wash its way through, thereby curtailing the distance 
and increasing the velocity of the current very considerably, 
while there would be no timber on the banks to obstruct its 
navigation in future; and being nearly straight, the timber 
which might float in at the head would be apt to go clear 
through. There are also many places above this where the 
river, in its zigzag course, forms such complete peninsulas as 
to be easier to cut at the necks than to remove the obstruc- 
tions from the bends, which, if done, would also lessen the 
distance. 

What the cost of this work would be I am unable to say. 
It is probable, however, that it would not be greater than is 
common to streams of the same length. Finally, I believe 
the improvement of the Sangamon River to be vastly im- 
portant and highly desirable to the people of the county; 
and, if elected, any measure in the Legislature having this for 
its object, which may appear judicious, will meet my approba- 
tion and receive my support. 

It appears that the practice of loaning money at exorbitant 
rates of interest has already been opened as a field for dis- 
cussion ; so I suppose I may enter upon it without claiming 
the honor, or risking the danger, which may await its first ex- 
plorer. It seems as though we are never to have an end to 
this baneful and corroding system, acting almost as prejudi- 
cially to the general interests of the community as a direct tax 
of several thousand dollars annually laid on each county for 
the benefit of a few individuals only, unless there be a law 
made fixing the limits of usury. A law for this purpose, I 
am of opinion, may be made without materially injuring any 
class of people. In cases of extreme necessity there could 
always be means found to cheat the law, while in all other 
cases it would have its intended effect. I would favor the 
passage of a law on this subject which might not be very 
easily evaded. Let it be such that the labor and difficulty of 
evading it could only be justified in cases of greatest neces- 
sity. 

Upon the subject of education, not presuming to dictate 
any plan or system respecting it, I can only say that I view 

327 



Constitutional History of the American People 

it as the most important subject which we as a people can 
be engaged in. That every man may receive at least a 
moderate education, and thereby be enabled to read the his- 
tories of his own and other countries, by which he may fully 
appreciate the value of our free institutions, appears to be 
an object of vital importance, even on this account alone, 
to say nothing of the advantages and satisfaction to be de- 
rived from all being able to read the Scriptures, and other 
works, both of a religious and moral nature, for themselves. 

For my part, I desire to see the time when education— and 
by its means, morality, sobriety, enterprise, and industry — 
shall become much more general than at present, and should 
be gratified to have it in my power to contribute something 
to the advancement of any measure which might have a ten- 
dency to accelerate that happy period. 

With regard to existing laws, some alterations are thought 
to be necessary. Many respectable men have suggested that 
our estray laws, the laws respecting the issuing of executions, 
the road law, and some others, are deficient in their present 
form, and require alterations. But considering the great prob- 
ability that the framers of those laws were wiser than myself, 
I should prefer not meddling with them, unless they were first 
attacked by others; in which case I should feel it both a priv- 
ilege and a duty to take that stand which, in my view, might 
tend most to the advancement of justice. 

But, fellow -citizens, I shall conclude. Considering the 
great degree of modesty which should always attend youth, it 
is probable I have already been more presuming than becomes 
me. However, upon the subjects of which I have treated I 
have spoken as I have thought. I may be wrong in regard to 
any or all of them, but, holding it a sound maxim that it is 
better only sometimes to be right than at all times to be 
wrong, so soon as I discover my opinions to be erroneous I 
shall be ready to renounce them. 

Every man is said to have his peculiar ambition. Whether 
it be true or not, I can say, for one, that I have no other so 
great as that of being truly esteemed of my fellow-men, by 
rendering myself worthy of their esteem. How far I shall 
succeed in gratifying this ambition is yet to be developed. I 

328 



A Plethora of State Banks in the West 

am young, and unknown to many of you. I was born, and 
have ever remained, in the most humble walks of life. I have 
no wealthy or popular relations or friends to recommend me. 
My case is thrown exclusively upon the independent voters of 
the country ; and, if elected, they will have conferred a favor 
upon me for which I shall be unremitting in my labors to 
compensate. But if the good people in their wisdom shall 
see fit to keep me in the background, I have been too familiar 
with disappointments to be very much chagrined. 

Your friend and fellow-citizen, 

A. Lincoln. 
New Salem, March 9, 1832. 

The Western country was dreaming of the time 
— close at hand — when steamboats would be pen- 
etrating its rivers, bringing the wealth of the world 
to its doors and bearing away its surplus corn and 
bacon. The West was young, confident, aggres- 
sive. There was a lesser Lincoln in every district, 
eager to vote the boundless credit of the State 
for the support of internal improvements. But of 
what use such improvements if the people had no 
money for their own affairs ? Money, and plenty 
of it, was the popular cry, and in response the As- 
semblies passed volumes of bank-laws. State banks 
sprang up at the cross-roads, in the cities, and 
showered reams of flat money over the country. 
Another money delusion seized on men, and, like a 
fever, ran its time. It was an era of irresponsible 
banking and "wild -cat" currency. Experiment 
with more or less vicious banking schemes contin- 
ued until uniformity and responsibility were secured 
by the national-bank act of 1863. 

The new States were booming; their every in- 

329 



Constitutional History of the American People 

habitant was about to make his fortune. Plenty 
of money, plenty of railroads and canals, and the 
thing was done. How it was done is well illus- 
trated in Lincoln's own experience. In 1834 he 
again stumped Sangamon County, advocating the 
same policy as before, and in August was elected. 
Illinois had nearly a quarter of a million inhabi- 
tants, the majority of whom were in favor of that 
policy. In the Assembly of 1834-35 plans were 
discussed for the general improvement of the State, 
and the legislators got no further that session. 
Most of them were candidates for re-election, and 
among others Lincoln. Again he issued an ad- 
dress to his district. His policy was comprehen- 
sive : 

To the Editor of the "Journal": 

In your paper of last Saturday I see a communication, over 
the signature of " Many Voters," in which the candidates who 
are announced in the Journal are called upon to "show 
their hands." Agreed. Here's mine. 

I go for all sharing the privileges of the government who 
assist in bearing its burdens. Consequently, I go for admit- 
ting all whites to the right of suffrage who pay taxes or bear 
arms (by no means excluding females). 

If elected, I shall consider the whole people of Sangamon 
my constituents, as well those that oppose as those that sup- 
port me. 

While acting as their Representative, I shall be governed by 
their will on all subjects upon which I have the means of know- 
ing what their will is ; and upon all others I shall do what my 
own judgment teaches me will best advance their interests. 
Whether elected or not, I go for distributing the proceeds of 
the sales of the public lands to the several States, to enable our 
State, in common with others, to dig canals and construct 

33o 



Lincoln Favors Paternalism in Government 

railroads without borrowing money and paying the interest 
on it. 

If alive on the first Monday in November, I shall vote for 
Hugh L. White for President. Very respectfully, 

A. Lincoln. 

New Salem, June 13, 1836. 

Again he was elected, and, with the majority of 
the Legislature, returned in full confidence that 
the people demanded a complete system of inter- 
nal improvements at their expense. The session 
of the Illinois Legislature of 1835 was not unlike 
that in other Western States. Railroads were 
chartered, canals projected, and a loan of half a 
million dollars for canal purposes authorized. This 
was more than two dollars apiece for every man, 
woman, and child in the State. The State was 
given over, as by mortgage, to carry on enterprises 
of vast consequence. Every town in the State 
should be in railroad connection with every other 
— aggregating thirteen hundred and fifty miles of 
construction. Many of the towns were like that 
city of Eden in which Martin Chuzzlewit expect- 
ed to make his fortune. The State was in danger 
of being laid out by the Legislature into in-lots 
and out-lots from Chicago to Cairo. Eight mill- 
ion dollars were voted for railroads, and four mill- 
ions more to complete a canal from Lake Michi- 
gan to the Illinois River. Innumerable roads and 
bridges were authorized, and the law directed " that 
work should be begun at once at the termini of 
all the roads and the crossings of all rivers." This 
stupendous folly met the approval of the majority 

33* 



Constitutional History of the American People 

of the people, and was advocated in a conservative 
fashion by Lincoln. The infatuation possessed 
older, wiser men than he. Experienced legisla- 
tors in General Assembly and in Congress were 
at the same time strenuously helping to inflate 
the financial bubble that burst with such dire 
results in 1837. That year remains in our an- 
nals as the Black Friday of fiat legislation — fiat 
banks, fiat money, fiat canals, fiat railroads, fiat 
fortunes. And yet the record of those times has 
taught us little, and speculation has reached a 
dizzy and almost equally dangerous height at least 
twice since. 

Collapse awoke the spirit of repudiation. The 
newer States were stunned by the weight of their 
obligations. Legislature followed Legislature in 
joint resolutions addressed to their creditors. Illi- 
nois bravely rejected repudiation. Speculation and 
the abuse of the credit system — so ran the resolu- 
tion of its Assembly — have been common faults. 
The whole world is guilty. And under this stim- 
ulus of universal speculation may not a new State 
be justified in planning largely for its people? 
Let the creditors of the State be patient. They 
shall be paid, for the resources of the State are 
inexhaustible ; its people are vigorous, industrious, 
and honest, and they will redeem their promises.* 
The lesson was learned at fearful cost all over the 
Union — in Pennsylvania and New York as well 

* Joint resolution, February 21, 1843. See also the joint reso- 
lution against repudiation passed by the Alabama Legislature 
January 17, 1844. 

332 



IQO 95 9° 85 



75 7° 




MAP OF 

THE UNITED STATES 
IN 1840 

SHOWING CIVIL DIVISIONS 
AND DISTRIBUTION OF POPULATION 



75 



Sparse Foreign- Born Population 

as in Illinois and Kentucky. The lessons of the 
panic of '$7 were incorporated in the constitutions 
of the next twenty years,* and have been remem- 
bered by every later commonwealth. 

While the country was intoxicated with specu- 
lation and prospective wealth, the frontier did not 
advance far west. Migration is a child of discon- 
tent. The increase in numbers was for a time 
chiefly within the old settled area — and this, in 
1840, was a little more than nine hundred thou- 
sand square miles. The portion of the country 
that might be called entirely settled was now equal 
in area to that of the original domain under the 
treaty of 1783. There w r ere about seventeen mill- 
ions of people, or about twenty-two to the square 
mile. In spite of speculation and the panic, the 
centre of population had maintained an average 
western movement of nearly five and a half miles 
a year. The number and the population of cities 
were increasing. This indicated a continuance of 
the change going on in the country, from farm to 
factory. As yet nearly the entire population was 
native-born. Less than six hundred thousand came 
from foreign lands, and of these the greater part 
from Great Britain. A few had come from Canada, 
Germany, Scandinavia, Italy, and France. There 
were eight Chinamen in the country. The white 
population was increasing more rapidly than the 
black. Emancipation was becoming less common, 

* Pennsylvania, 1838; Rhode Island, 1842; Louisiana, 1845; 
New York, 1846; Illinois, 1848; Michigan, Ohio, and Kentucky, 
1850; Indiana and Maryland, 1851. 

333 



Constitutional History of the American People 

because of restrictions chiefly contained in recent 
laws. The abolition sentiment was gaining strength 
among a class of people who stood aloof from the 
two great parties. The Missouri struggle had 
given birth to a Free-soil party, and from the day 
when Taylor offered his resolution to exclude 
slavery from Missouri, the Free-soil party gained 
strength — disclosed in antislavery publications, 
antislavery meetings, in antislavery resolutions of 
State Legislatures, and in antislavery laws. To 
all this the slave-holding States made rejoinder by 
counter-publications, resolutions, and laws. 

The collapse of State systems of internal im- 
provement, the failure of the State banks and 
the suspension of specie payments, the deprecia- 
tion of State bonds, the worthlessness of fiat 
money, and the fearful burdens which all this ruin 
put upon the shoulders of the taxpayers left their 
disfiguring marks on the lives of multitudes of 
men and women. Few of the children born dur- 
ing these dark days had the opportunities which 
in ordinary, prosperous times are the common 
heritage of each generation of Americans. Hard 
times rob childhood and youth, burden manhood, 
and sadden old age. Business was prostrate, farm 
produce would not sell, attendance at the schools 
fell off, and especially at those of higher grade, 
which charged for tuition. 

Could one have seen the whole country at a 
glance in the years when Arkansas and Michigan 
came into the Union, and then again two years 
later, when the great panic had come, it would 

334 



_ 



Texas and Its Boundary Line 

have seemed as if the nation had been struck mo- 
tionless — as if some powerful and evil spirit had 
stopped the wheels in the factories, closed the 
banks, shut up the stores, stayed the plough in the 
furrow, fastened the boat to the wharf, suddenly 
dismissed the bridge - builder, the engineer, and 
the contractor, and discharged the laborers with 
their tools in their hands. When, by cruel fortune, 
an ants' nest is suddenly crushed in, the little creat- 
ures are for a moment stunned. Then they are 
seen running aimlessly in all directions and ap- 
parently greatly excited. After a time they crawl 
back into orderly ways, and begin to repair their 
habitation. In a few days they have accommo- 
dated themselves to their new conditions and are 
seen to be busily at work, as if no accident had be- 
fallen them. They will even abandon their repairs 
to wage battle with another colony. 

Amid the hard times that followed the panic of 
'37 the people of the commonwealths acted very 
much like a colony of ants whose fine roof had sud- 
denly been tumbled upon their heads. Stunned, 
uncertain for a time, they soon resumed their un- 
dertakings, adapted themselves to their new con- 
ditions, and stood ready to wage battle with their 
opponents. Nor was a cause of division lacking. 
In April, 1836, the United States and Mexico ar- 
ranged, through their Representatives at Washing- 
ton, for a survey of a boundary line between the 
two republics as stipulated by the treaty of 1828.* 

* Treaties and Conventions, pp. 675-6. 
335 



Constitutional History of the American People 

The execution of this agreement was suddenly in- 
terrupted by the revolt of Texas and its proclama- 
tion of independence.* A treaty with the new re- 
public soon followed,! and a survey of boundary 
was agreed upon.| It was to be completed within 
a year. But no man can tell what a year may 
bring forth. 

The new republic was an opportunity. Hard 
times breed idlers — restless, perhaps dangerous. 
The panic of '37 turned the thoughts of thousands 
of Americans, chiefly in the slave -holding States, 
towards Texas. Military companies volunteered 
for the defence of the new republic. From Ken- 
tucky, Tennessee, Arkansas ; from Georgia, the 
Carolinas, and Florida; from Alabama, Mississippi, 
and Louisiana, these volunteers converged upon 
Texas. The compromise of 1820 had made near- 
ly all the Louisiana country free soil. The reso- 



* March 2, 1836. The declaration was an imperfect transcript 
of Jefferson's ; was made by Americans chiefly from Louisiana, 
Mississippi, Alabama, Tennessee, and Kentucky, and omitted Jef- 
ferson's dictum, " all men are created equal." The constitution 
of Texas of 1836 was closely modelled after those of the five 
States above mentioned, but was more restrictive than any of 
them of the immigration of free negroes and of the power of the 
Legislature to emancipate slaves. It was the ultra pro-slavery 
constitution thus far made. It became the basis of the constitu- 
tion of 1845. The declaration given by Poore was adopted by 
the consultation at San Felipe de Austria, in November, 1835, and 
refers to the Mexican Constitution of 1824. The actual declara- 
tion passed March 2, 1836, is not given by Poore. See the 
Journal of the Convention (General Council of the Republic of 
Texas) November 14, 1835, to March 11, 1836. Houston: 1839. 

t April 11, 1838. 

% April 25, 1838. Treaties and Conventions, 1078-1080. 

336 



Opposing Sentiments About Texas 

lute vote which, seventeen years before, had sup- 
ported Randolph and Lowndes in their opposition 
to slavery restriction now brought forth a harvest 
of public sentiment in the South. On Christmas 
Day, 1837, the Legislature of Alabama gave ex- 
pression to this in a joint resolution for the reannex- 
ation of Texas. Similar resolutions were passed 
by other Southern Legislatures. Those of the 
North passed counter-resolutions.* The country 

* The conflicting and ominous elements in public opinion 
from 1835 to 1850 are nowhere more plainly and significantly 
indicated than by the acts and joint resolutions of the State Leg- 
islatures respecting Oregon, Texas, and slavery. The principal 
resolutions and acts are as follows : 

Alabama. — Joint resolutions for annexation of Texas, Decem- 
ber 25, 1837, and January 1, 1842. Another sympathizing with 
Virginia {in re the resolutions of New York, April 11, 1842, as to 
refusing return of fugitive slaves), " a dangerous and alarming at- 
tack upon Southern rights," February 14, 1843. "The right to 
exercise power (over slavery) by a State is higher and deeper than 
the Constitution," resolution of January 27, 1845. Alabama will 
act in concert and make common cause with other slave States 
for the defence of the institution of slavery — Congress has no 
power over the institution, resolution of March 6, 1848. 

Delaware. — Joint resolution — the addition of slave territory 
hostile to the spirit of free institutions and contrary to sound 
morality, February 25, 1847. 

Florida. — Joint resolution that "Congress has no power 
to abolish slavery in the District of Columbia or to prohib- 
it it south of 36 30'. Florida ready to join Virginia, South 
Carolina, North Carolina," etc., "for defence of our rights." 
"whether through a Southern convention or otherwise," Jan- 
uary 13, 1849. 

Georgia. — Elaborate resolution on " Federal relations," Wil- 
mot proviso, slavery extension, etc., February 8, 1850. 

Illinois. — Joint resolution favoring the occupation of Oregon, 
February 21, 1843 ; to 54 40', February 27, 1845 > same date, one 
favoring " reannexation " of Texas. 

Kentucky. — Joint resolution : The United States should assert 
1— y 337 



Constitutional History of the American People 

was again divided. Like the ants, the people for- 
got that their roof had recently fallen about their 
ears. Public sentiment North was arrayed against 
public sentiment South. For a time its vehe- 

its rights and occupy Oregon, February 27, 1843. See also on 
Federal relations, March 1, 1847. 

Louisiana. — Joint resolution proposing a convention of the 
slave -holding States to obtain respect for their institutions, 
" peaceably if they can, forcibly if they must." Resolution of 
February 20, 1837. 

Massachusetts. — Joint resolution against the annexation of 
Texas, March 16, 1838 ; against the admission of new slave States, 
April 23, 1838 ; also, of same date, resolution that Congress by the 
Constitution has power to abolish the slave traffic between the 
States. The admission of Texas dangerous to the peace of the 
Union, March 17, 1843. 

Michigan. — Joint resolution, March 1 1, 1844, that the joint oc- 
cupancy of it with Great Britain should cease , that our claim 
to 54 40' is "clear and incontestable," January 4, 1846 ; that the 
Mexican War was justifiable, February 13, 1847; that slavery 
" is a mere local institution without positive law"; that the prin- 
ciple of the Ordinance of 1787 is fundamental, and that Congress 
has the power and the duty to prohibit slavery in any United 
States territory now or to be acquired, January 13, 1849. Joint 
resolution favoring the admission of California, February 23, 1850. 

Mississippi. — Joint resolution like the last of Alabama, Feb- 
ruary 6, 1 841. For annexation of Texas, February 25, 1842. Res- 
olution approving and vindicating the Mexican War, March 4, 
1848 ; on Federal relations, March 6, 1850 ; on California, March 5, 
1850. Very elaborate, pro-slavery, and favoring State sovereignty. 

New Hampshire. — Joint resolution for the " reannexation of 
Texas," December 28, 1844, and another disapproving of " British 
interference" in Texas, July 2, 1845. Joint resolution that "the 
Ordinance of 1787 should be extended over Texas," December 29, 
1848. Slavery should be excluded from New Mexico and Cali- 
fornia, January 4, 1849. No more slave States, "all men created 
equal " ; New Hampshire " pledged for freedom " ; no slavery in 
Oregon, July 10, 1846. 

New York. — Joint resolution disapproving Governor Seward's 
refusal to return fugitive slaves (to Virginia), because slavery is 
not felony within meaning of the United States Court, Art. iv., 

338 



The Conquest of Mexico 

mence was restrained by the invasion and con- 
quest of Mexico. But victory could only aggra- 
vate the differences between the States, because it 
extended the boundaries of the country to the 

Sec. 2; the Legislature resolves that it is, April n, 1842. This 
act of the Governor provoked counter- resolutions in Virginia, 
South Carolina, Georgia, Florida, Louisiana, Kentucky, Alabama, 
and Mississippi. Extension of slavery into the Territories should 
be forbidden, resolutions of January 27, 1847, and January 13, 
1848; the laws of Texas and slavery should be excluded from 
the region between the Neches and the Rio Grande and from 
New Mexico, east of the Rio Grande, resolution of January 4, 
1849. Extension of slavery to California should be forbidden 
and Congress should abolish the slave-trade in the District of 
Columbia, resolution of January 16, 1850. 

Ohio. — Joint resolution that slavery should be excluded from 
Oregon, February 8, 1847; that Congress has power to exclude 
it from acquired territory, February 24. 1848 ; that the Ordinance 
of 1787 should be extended to territory acquired from Mexico, 
February 13, 1847 J February 25, 1848. 

Pennsylvania. — Joint resolution instructing the Senators and 
Representatives in Congress to vote against the acquisition of 
new territory unless slavery be prohibited, January 22, 1847. 

South Carolina. — Joint resolution advocating a call for a con- 
vention or Southern congress " to arrest further aggressions and 
restrictions on the rights of the South," December 20, 1850. 
Compare resolutions of December 17, 1841. The commonwealth 
put into a " state of defence," act of December 20, 1850. 

Tennessee. — Joint resolution in favor of annexation of Texas, 
January 20, 1838 ; another for its admission into the Union, "on 
an equal footing with the sovereign States of these United 
States of America," February 7, 1842. 

Vermont. — Joint resolution against annexation of Texas ; for 
abolition of slavery in the District of Columbia and in the Terri- 
tories : joint resolution given in "Acts and Resolutions of 1838," 
p. 23. The perpetuation of slavery a violation of the national 
compact, 1844. 

Virginia. — Joint resolution that Congress can impose no con- 
dition on slavery extension, as such limitation is not within its 
power; laws preventing the removal of slave property to a Terri- 
tory unconstitutional and in violation of the Missouri Com- 

339 



Constitutional History of the American People 

Pacific. The acquisition from Mexico became at 
once a new subject for controversy. 

The Texas question, and all that it involved, did 
not suddenly supplant in popular interest the 
question of State banks and internal improve- 
ments. But it was an open cause of division be- 
tween the sections. They were less divided over 
the Oregon question. The boundaries of the 
Oregon country no man knew. Its joint occupa- 
tion by Great Britain and the United States only 
postponed a struggle. Public opinion found ex- 
pression here and there in the resolutions of State 
Legislatures favoring the " immediate occupation 
of all Oregon," and this meant to 54 40' north lati- 
tude. New England, for a time alarmed at the 
prospective dismemberment of Maine in settling 
the northeastern boundary, delivered herself of 
strong State -sovereignty notions and appeals to 
the States, # but finally acquiesced in the decision 

promise, March 8, 1847. See also the joint resolution on the 
Wilmot proviso, January 20, 1849. 

Wisconsin. — Joint resolution favoring the application of the 
Ordinance of 1787 to all new territory, June 21, 1848. Joint 
resolution favoring the "immediate occupation of Oregon," Jan- 
uary 13, 1844. 

* See the following authorities having reference to this sub- 
ject : Resolutions of the Massachusetts Legislature, February 9, 
1830, protesting against the adoption of the decision of the King 
of the Netherlands and declaring it to be in violation of the 
rights of the State as secured by the Federal Constitution, and 
"consequently null and void and in no ways obligatory upon the 
government or people." Resolutions of February 24, 1826; Feb- 
ruary 15, 1832; March 23, 1832; March 14, 1836, and April 19, 
1838, the latter declaring that no power is delegated by the Con- 
stitution of the United States to Congress authorizing it to cede 
to a foreign nation any territory lying within the limits of either 

340 



Opposition to the Federal System 

under the Webster- Ashburton treaty of 1842.* 
The hostile attitude of Maine for a time indicated 
how thoroughly the doctrines of '98 possessed the 
people of a State when they thought themselves 
injured by the general government. Objections 
of this kind, North or South, all tended to become 
obstacles in the pathway of the national idea. 

of the States of the Union. Resolutions of March 26, 1839; 
March 13, i84i,and March 3, 1842. Resolutions of Maine Legis- 
lature, February 28, 1831, that the convention of the United States 
with Great Britain, made in September, 1827, tended to violate 
the Constitution of the United States and to impair the sovereign 
rights and powers of the State of Maine, and that Maine is not 
bound by the Constitution to submit to the decision which is or 
shall be made under the convention. Resolutions of the Maine 
Legislature, January 19, 1832, that the United States has only a 
"special and modified sovereignty." Governor Enoch Lincoln's 
message of January 8, 1829 : " By Senators in Congress we repre- 
sent our aggregate and consolidated population in its common 
and combined wants and demands. It is the senatorial rep- 
resentative who is to appear for us all against invasion of the 
sovereignty which belongs to the republic." Laws of Maine, 1 829, 
p. 11. The question of State sovereignty involved in the Alien 
and Sedition laws, the Virginia and Kentucky resolutions, the 
tariff in South Carolina in 1828, the taxation of the United States 
Bank by Ohio in 1820, and the settlement of the northeastern 
boundary, brought out a mass of resolutions by State Legislat- 
ures. Many of these are given in a pamphlet entitled The Vir- 
ginia and Kentucky Resolutions of 1798 and '99; with Jefferson's 
Original Draught thereof. Also Madison's Report, Calhoun's 
Address, Resolutions of the Several States in relation to State 
Rights. With other Documents in Support of the Jeffersonian 
Doctrines of '98. " Liberty — The Constitution — Union." Pub- 
lished by Jonathan Elliot, Washington : May, mdcccxxxii. ; 82 pp. 
Maine and Massachusetts were present, in their commissioners, 
when, at Washington, in June, 1842, Lord Ashburton and Webster 
signed the treaty. The northeastern boundary question was thus, 
at last, amicably settled. New England had declared, but not 
applied, the doctrine of State sovereignty. 
* Treaties and Conventions, 432-438. 

34i 



Constitutional History of the American People 

Russia, in 1824, agreed with the United States 
by treaty that the boundary between the two 
countries should be along the line of 54 40', thus 
laying a foundation for the extreme American 
claim.* But the Oregon country was far from 
Washington, and was of slight commercial interest 
to the East. Its boundaries seemed of no mo- 
ment, as probably population would not reach the 
country for centuries. The treaty of 1846 with 
England,! fixing the boundary along the forty-ninth 
parallel, did not provoke great public interest. This 
treaty settled the northwestern boundary as far as 
Puget Sound. On the 2d of February, two years 
later, by the treaty of Guadalupe - Hidalgo,:}: the 
boundaries of the purchase from Mexico were es- 
tablished. Thus, by the middle of the century de- 
mocracy in America was in possession of the heart 
of the continent from ocean to ocean, from the 
great lakes to the Rio Grande. Florida was out of 
the lines of migration. Immigrants in the North 
were passing into Michigan, Illinois, Wisconsin, 
and Iowa; in the South the tide flowed into 
Texas. As an inducement to settle in Florida, 
Congress § now offered a quarter of a section of 
land to any person, being the head of a family or 
a single man over eighteen years of age, able to 
bear arms, who, within a year, would settle in East 
Florida. The population of the Territory had 
doubled in twenty years, but was still small. || 

* Treaties and Conventions, 931-3. t Id., 438-9. 

X Id., 681-694. § Act of August 4, 1842. 

,1 Population, 1830, 34,730; 1840, 54,477; 1850, 87,445. 

342 



Texas Admitted by a Unique Resolution 

The effect of the act was immediate. In ten 
years population increased over thirty thousand. 
The rush of settlers caused numberless land dis- 
putes, so that Congress found it necessary to re- 
vise the late act. As early as 1838* a convention 
had assembled at St. Joseph's and formed a con- 
stitution, but seven years passed before Congress 
passed an enabling act.t It applied alike to Flor- 
ida and Iowa, and admitted both States. But Iowa, 
dissatisfied with the boundaries imposed by the 
act, refused to enter the Union with them. Con- 
gress passed a supplementary act on the same day 
relative to Iowa, and in the following year,| in a 
third act, again defined the boundaries and referred 
the boundary dispute between it and Missouri to 
the Supreme Court. This act made the usual 
grant of lands for schools, public buildings, and 
internal improvements, and admitted the State 
on the 28th of December.§ On the 1st of March, 
1845, the popular clamor for the reannexation of 
Texas was satisfied by a joint resolution of Con- 
gress, which remains unique in our history. 
Texas was not asked to adopt a constitution in 
conformity with that of the United States. The 
condition imposed by Congress was the submis- 
sion to it of all questions of boundaries. A State 
constitution should be made, and, with evidence 

* December 3d. f March 3, 1845. \ August 4, 1846. 

§ See journal of this convention, held May 4-19, 1846; Iowa 
City, 1846. Also, the Documentary Material Relating to the 
History of Iowa, edited by Benjamin F. Shambaugh, Nos. i.-viii. ; 
published by the State Historical Society of Iowa. 

343 



Constitutional History of the American People 

of its adoption, should be sent to the President, to 
be laid before Congress by the ist of January, 1846. 
The United States should not be charged with 
the liabilities of the late republic. It retained its 
public lands. With its consent, four States, or 
less, might be formed out of its domain and be 
entitled to admission into the Union. All formed 
south of the line of the Missouri Compromise 
should be admitted with or without slavery as the 
people of each State should decide. North of the 
line slavery was prohibited. 

On the 4th of July, 1845, a convention met at 
Austin, and completed a State constitution late 
in August* It was submitted to popular vote 
and ratified.! The vote bore small ratio to the 
population. At this time there were upwards of 
fifty thousand men in the State, most of whom 
were slaves. Many, especially the native Mexi- 

* August 27th. 

t Four thousand one hundred and seventy-four to three hun- 
dred and twelve. See the following works relating to this sub- 
ject: The Constitution of the Republic of Mexico and of the 
State of Coahuila and Texas, containing also an abridgment of 
the Laws of the General and State Governments relating to Col- 
onization, with Sundry other Laws and Documents, not before 
published, particularly relating to Coahuila and Texas, the Docu- 
ments relating to the Galveston Bay and Texas Land Company; 
the Grants to Messrs. Wilson and Exter, and to Colonel John 
Dominguez. With a description of the soil, climate, productions, 
local and commercial advantages of that interesting country. 
New York, 1832. Journal of the Convention, October 16 to No- 
vember 14, 1835 ; Houston, 1838. Journal of the General Council 
of the Republic of Texas, November 14, 1835, to March 11, 1836; 
Houston, 1839. Journal of the Convention of July 4 to August 
28, 1845 ; Austin, 1845. Debates of same, W. F. Weeks, reporter ; 
Houston, 1846. 

344 



Wisconsin Made a State 

cans, did not vote. It was the American party 
that made the constitution and carried it through. 
It was this party that, from first to last, effected 
reannexation. Congress accepted the constitu- 
tion, extended the laws of the United States over 
Texas, and admitted it by joint resolution.* 

Wisconsin was now asking admission. Con- 
gress passed the requisite act in August,! and on 
the 15th of October a convention assembled at 
Madison. Its work was rejected by the electors, 
and another convention assembled at the same 
place late in the following year.ij: The constitu- 
tion it submitted was approved by the electors in 
March and by Congress in May.§ In ten years 
the population of Wisconsin increased from thirty 
thousand to three hundred thousand. || 

California comprised the greater part of the 
Mexican acquisition, for by that name the country 
from Texas to the Pacific was known in the East. 
Congress extended the revenue laws over it, and 
made San Francisco a port of entry.^f Violations 
of law were to be prosecuted in the Supreme Court 
of Oregon, or in the District Court of Louisiana. 

* December 29th. f August 6, 1846. 

\ See Journal of the Convention to Form a Constitution for 
the State of Wisconsin, Begun and Held at Madison, on the Fifth 
day of October, One Thousand Eight Hundred and Forty-six ; 
Madison, W. T., 1847. Also, Journal of the Convention to Form 
a Constitution for the State of Wisconsin, with a Sketch of the 
Debates, Begun and Held at Madison, on the Fifteenth day of 
December, Eighteen Hundred and Forty-seven; Madison, W. T., 
1848. § The State was admitted May 29, 1847. 

I Population, 1840, 30,945 ; 1850, 305,391. 

1 Act of March 3, 1849. 

345 



Constitutional History of the American People 

Vermont, Kentucky, and Tennessee had never 
been organized as Territories. Texas and Califor- 
nia were to be similar exceptions. As soon as 
news of the discovery of gold in California spread 
abroad, all the world set its face towards the 
gold-diggings. While Congress was debating 
whether California should be organized as a Ter- 
ritory, more than two hundred thousand men had 
arrived on the coast and were transforming it into 
a State. Their civil necessities quickly outran 
the performance of Congress. A convention as- 
sembled at Monterey* on the ist of September, and 
its work was approved by the electors in November. 
A year and nine days after the convention met 
Congress admitted the State — the thirty- first in 
the Union. It came in as free soil. The balance 
of power between the States was broken. Public 
opinion again found expression in the resolutions 
of the State Legislatures— some favoring, some op- 
posing the further extension of slavery. Its restric- 
tion was viewed with alarm by the slave-holding 
States, and their expostulatory resolutions sounded 
a cry for a Southern convention. Some slave-hold- 
ing States made provisions for military protection. 
The doctrine of '98 seemed on the point of being 
put to practical test.t 

An act creating the Territory of Minnesota pass- 



* See Report of the Debates in the Convention of California 
on the Formation of the State Constitution, in September and 
October, 1849. By J. Ross Browne. Washington: Printed by 
John T. Towers, 1850. See also Vol. ii., Chapters x., xi., xii. 

f See note, pp. 340 et seq. 

346 



The Territories of Minnesota and Oregon 

ed early in March* Congress limited the franchise 
to free white men, and followed the Territorial 
precedents of the Northwest. As Minnesota was 
organized out of Wisconsin, the laws of the latter 
were continued in force as far as was consistent 
with the recent act. The new Territory contained 
about six thousand people,! and was divided into 
nine counties. Oregon had been a theme for debate 
in Congress, more or less, for twenty years. It 
was too far away to awaken much popular interest, 
and no man's seat in Congress depended upon his 
advocacy of its claims. Immigrants were arriv- 
ing in large numbers, and were demanding a Ter- 
ritorial government. National parties made Ore- 
gon the substance of planks in their platforms, but 
these did not make a passable road to Astoria. 
Finally, Congress erected the country into a Ter- 
ritory,^: providing also that it might be subdivided 
into two Territories. The model followed was 
that of Minnesota. Only white men could vote 
or hold office. The act contained a new provi- 
sion, that recalled the panic of '37 — the Territori- 
al Legislature was forbidden to incorporate a bank, 
or to grant any institution banking powers, or to 
pledge the credit of the Territory for any loan. 
Nor could it give any privilege of making or cir- 
culating bank-bills, or bills of exchange, or any- 
thing like them. This indicated that the lessons 
of '37 were not forgotten. Another lesson call- 
ing for reform, too, was remembered: henceforth 

* March 3, 1849. t Population, 1850, 6077. 

X Act of August 14, 1848. 

347 



Constitutional History of the American People 

every law must embrace but one object, which 
must be expressed in its title. This was an early 
attempt to stop the evil of including vicious legis- 
lation under the phrase of the title " and for other 
purposes." A provision of local importance for- 
bade the obstruction of streams that would prevent 
the salmon from passing up and down them freely. 
The antislavery provision of the Ordinance of 1787 
was imposed upon the Territory, thus making it 
free soil forever. Two years earlier* the joint 
occupation of the country had, by resolution of 
Congress, come to an end. An appropriation was 
made for a military station on the line of com- 
munication to Oregon, and, to encourage immigra- 
tion, the Secretary of War was authorized! to fur- 
nish all applicants who designed to emigrate to 
Oregon, California, and New Mexico with such 
arms, munitions, and stores as might be required. 
The treaty of 1846 settled all controversy with 
Great Britain respecting title to the country. 

On the day when California was admitted the 
northwestern boundary of Texas was settled ; 
Texas ceded a large region of country to the 
United States for ten million five per cent, stock, 
and Congress organized the Territories of New 
Mexico:]: and Utah.§ The franchise was limited, 
as usual, to white men. In New Mexico the 
white population clustered about a few old Span- 
ish towns ; in Utah it comprised the new Mor- 
mon settlements at Salt Lake. By the organiza- 

* April 27, 1846. t March 2, 1849. 

J Population, 1850, 61,547. § Population, 1850, 11,380. 

348 



Civilisation Trending Westward 

tion of Utah and New Mexico the last link of 
local civil government between Maine and Cali- 
fornia was completed. Except the unorganized 
Indian country, every foot of American soil was 
now subject to the law of State or Territory. Of 
States there were thirty -one; of Territories, five. 
The line of the Missouri Compromise divided the 
public domain into free and slave soil. Geo- 
graphically, the division was equal, except the 
southern part of California. This extended below 
the line. 

Three-quarters of a century had now passed 
since the Declaration of Independence. Popula- 
tion had increased from two and a half to twen- 
ty-three millions, and the public domain from 
less than nine hundred thousand to nearly three 
million square miles. During this time the centre 
of population had moved westward nearly four 
miles, on an average, each year. The frontier had 
reached the Pacific, but in the middle of the con- 
tinent there lay a wilderness, more than a thou- 
sand miles wide, whose eastern edge was in Iowa, 
whose western was at the Nevada mountains. 
The ceaseless tide of immigration had reached 
the Indian tribes, had surrounded their best lands, 
had extinguished their titles, and had compelled 
them to migrate into the Indian country. About 
the middle of the century the white man and the 
Indian stood face to face in the centre of the con- 
tinent, disputing for its sovereignty. The history 
of the tribes east of the great river during the first 
half of the century was to be repeated west of it 

349 



Constitutional History of the American People 

during the second half. • No political party had 
raised a voice for the Indian, and but one State 
had made it possible for him to become an Amer- 
ican citizen.* 

Within a few years foreigners had begun to ar- 
rive in large numbers.! Nine-tenths of the popu- 
lation were, however, native-born ; yet the number 
of foreigners in the country was nearly equal to 
its population at the outbreak of the Revolution. 
Native-Americanism discriminated against the for- 
eigner, but its force was impotent, except in the 
slave-holding States. £ It followed that the North- 
ern States and Territories profited by their com- 
ing, and in the Northwest there was rivalry among 
the States to make them welcome.§ Gradually some 
parts of the West, as in Wisconsin, came to con- 
sist largely of foreign settlements. The laws were 
printed in German in several States, and news- 
papers in the language of the new-comers began 
to appear. The Irish did not go West. They 
preferred the cities and towns of the East, but 
many of them found temporary employment on 
the railroads and canals in course of construction 
all over the North. Their sons were sent to school, 
and the next generation of Americans included 
them among its successful merchants, doctors, law- 

* Wisconsin, constitution of 1848, Art. iii., Sec. 1. 

t Since 1841. 

\ See the debates in the Louisiana Convention of 1845, in the 
Kentucky Convention of 1849, and in the Virginia and Maryland 
conventions of 1850. 

§ See the Wisconsin Convention debates of 1847 and the de- 
bates in the Convention of Michigan in 1850. 

35° 






Building Up the Cities of the West , 

yers, preachers, and politicians. The Germans 
wanted farms, and therefore they passed west- 
ward, locating all the way from New York to 
Iowa. Canadian immigrants located near the 
great lakes engaged in farming, and, to a larger 
extent, in milling and in starting great lumber 
industries. A few Englishmen and Scotchmen 
settled in the South, became prosperous plant- 
ers and earnest advocates of slavery. Their sons 
usually entered politics and became highly influ- 
ential. The Irish, the Germans, the Scandinavians, 
and the Canadians sedulously avoided slave soil. 
They were men who had to work for a living. 

The number of cities containing eight thousand 
people, like the urban population, had doubled in 
ten years. New York, the largest city in the 
country, contained a little over five hundred thou- 
sand people. * No longer was the increase in city 
population limited to the Atlantic seaboard. The 
large towns in Ohio — Cleveland, Akron, Columbus, 
Dayton, Cincinnati ; in Indiana — Fort Wayne, In- 
dianapolis ; in Michigan, Detroit; in Wisconsin, 
Milwaukee; in Illinois — Chicago, Joliet, Peoria, 
Quincy ; in Iowa — Dubuque, Burlington; in Mis- 
souri, St. Louis and Kansas City — were gaining 
more rapidly than. the towns of the East. They 
were fast becoming manufacturing centres, and 
around them lay rich farms and near them pros- 
perous villages. In these the conspicuous buildings 
were the school-house and the churches ; and in the 

* In 1850, 515.547. 
35i 



Constitutional History of the American People 

larger towns, these and the factories. The houses 
in the West were generally of wood. In the East, 
brick and stone had been commonly used since 
the country was settled. Throughout the North, 
in the New England and New York belt, the dwell- 
ing-houses were usually of the New England style, 
built of wood, painted white, with green blinds. In 
the South, the richer planters lived in commodious 
mansions, whose architecture would now be called 
colonial. Both North and South abounded in log- 
houses and unpainted one-story cabins. 

Wealth was the dispenser of social rank ; less 
was made of ancestral distinctions than now. It 
was a new country, and the most populous cen- 
tres were not two hours' travel from wild lands or 
primeval forests. Few homes had the luxuries 
now common. If there were rugs or carpets, they 
were mostly home-made. Rarely were there pict- 
ures or that miscellaneous collection of orna- 
ments we call brie - a - brae. Wall - paper was a 
luxury. Organs and pianos were almost unknown. 
To own a melodeon or a dulcimer was evidence of 
wealth and elegance; to play either gave distinction. 
Rarely did a church have an organ, but the leader 
of the choir had a tuning-fork. As yet no church 
was struggling over the question whether to call a 
minister or to buy a pipe - organ. Churches were 
usually built by local carpenters, who donated their 
work. These buildings were barren of ornamenta- 
tion, were never elegant, and rarely comfortable. The 
building was one vast room, planned to contain the 
preacher and his listeners. The early churches 

35 2 



Early Religious Practices of the People 

were not heated. With prosperity came huge box^ 
stoves, long enough to burn four-foot wood. Usu- 
ally the stoves were set near the doors, in a location 
conveniently accessible to the wood-pile. The sinu- 
ous stove-pipe ran near the ceiling, the full length of 
the church. Forests were consumed, but a church 
was rarely warm. There were no separate rooms 
or adjoining buildings for Sunday-schools or church 
entertainments. Indeed, except the too -frequent 
lottery, by means of which the church was built 
or the minister paid, church entertainments were 
quite unknown. In summer-time, betwixt haying 
and harvest, or in the autumn, after the harvest 
was gathered, here and there over the country 
might be heard the voices of great camp-meetings. 
About the time when Lincoln was first a candidate 
for the Assembly these meetings were religious 
caravansaries. Gradually the Presbyterians, who 
seem to have originated them, abandoned them to 
the Baptists and Methodists. In many parts of 
the country they were relied on as the only prac- 
ticable method of bringing the people together 
for religious worship. They were attended, not in- 
frequently, by all the population within a circuit of 
fifty miles. Amid profound and irrepressible ex- 
citement sermons were preached which strongly 
moved the listeners, and which lingered long in 
the memory as events of a lifetime. 

Some of us who remember in our school-readers 

William Wirt's touching description of the blind 

preacher may have wondered in our mature years 

whether that majestic figure which Wirt drew 

I.— z 353 



Constitutional History of the American People 

existed only in his fancy. But as we retrace the 
century and revisit its eventful scenes, we hear 
and see many such leaders of the flock as Wirt 
describes — earnest, trustful, eloquent men, now for- 
gotten, like the multitudes who gladly heard them. 
Not Congress alone ; not Presidents and courts and 
Governors and Legislatures; not orators like Henry 
and Ames, Webster and Clay; not inventors like 
Fulton and Goodyear and Morse and Singer; not 
the poets and the historians and the journalists — 
but also the rural preachers, the circuit-riders, the 
faithful priest, the voices crying in the wilderness — 
these moulded democracy in America. All these 
pass before us as we go back to the days of small 
things, the gray days of work and pioneering. 

At the middle of the nineteenth century democ- 
racy in America was encumbered with more slaves 
than the entire population numbered on that 
April day when Washington became President. 
Scattered over the land were more than four hun- 
dred and thirty thousand # free persons of color, 
everywhere unwelcome. Slave property in the 
border States was becoming insecure and the black 
code yearly more severe. The constitutions and 
laws of the Southern States were gradually mak- 
ing emancipation impossible. Few Northern peo- 
ple migrated to the South for permanent homes ; 
fewer Southern people sought homes in the North. 
The Union consisted of two peoples, separated by 
a compromise boundary. They did not know one 

* 434495- 
354 



California the Keystone of Power 

another well. Far in the West lay one State 
whose composite people had recently made a con- 
stitution which contained both Northern and 
Southern elements. California was free soil, and 
the men who made its constitution and laws repre- 
sented by birth nearly every State in the Union. 
Was this State, that broke the balance of power in 
the Union, indicative of the goal to which democ- 
racy in America was tending? Free labor had 
made this State and won its admission, for it 
would not compete with slavery in the gold-mines. 



CHAPTER XII 
A PEOPLE WITHOUT A COUNTRY 

Every nation in history, at some period of its 
career, has been an oppressor. The oppressed 
have not infrequently been as numerous as the 
oppressors, sometimes more numerous. Usually 
the relation between the two groups is that of 
master and slave, but the slave, being property, is 
protected by the law of things.* As a human 
being he has few rights, or none. As property 
he must have an owner, and be answerable, as 
assets. By law he may be real or personal prop- 
erty. Slave codes, in whatever nation, guard him 
as long as he is productive or profitable, but their 
dominant purpose is to prevent him from exercis- 
ing the rights of man. He is denied every right 
except the right of things. He must be owned, 
but cannot own ; he must be protected, but cannot 
protect himself; he must support the State, but 
cannot participate in its organization or control. 
He must be known, but cannot be taught. He 
has no rights ; another has rights in him, to him, 
over him. Only by custom can a slave be called 
he or she. Property is impersonal. 

* The principal authorities for this chapter are the colonial 
laws and the laws of the several States on the subject, from 1800 
to 1850. 

356 



The False Tenets of Democracy 

But man makes the law for man ; property the 
law for property. In spite of the law of things, 
slaves have always tended to come under the 
law of persons. The affection of the master, or 
some great personal or public service done by the 
slave, might work emancipation. Or a person of 
the same race as the slave might not be a slave in 
another country. Thus inheriting a man's rights, 
his descendants would be freemen. 

Democracy in America, during the first century 
of independence, exhibited the anomaly of being 
slavocracy. Its excuse was the common one of 
the heir-at-law; its real defence was the lust and 
the enjoyment of riches and power. In some 
form slavery existed in every colony, though it 
ceased first in those of the North, and chiefly on 
account of the climate. Had the sunny, semi- 
tropical climate of Florida and South Carolina ex- 
tended over New England, the abolition of slavery 
would have been advocated farther north. Even 
our morality is much a matter of latitude. 

Not until the eighteenth century was nearly 
past did the people of New England,* New York, 
Pennsylvania, and New Jersey arrive at the con- 
clusion that slavery was unprofitable. Then they 
provided for its gradual abolition. Their morality 

* In Rhode Island, negroes born after 1784 were free ; in Con- 
necticut, after 1797 — slavery abolished, June 12, 1848. Slavery- 
was abolished by the constitution of Vermont, 1777 ; of Massa- 
chusetts, 1780; of New Hampshire, 1783. Gradual abolition was 
effected, by statute, in Pennsylvania, 1780; New York, 1799; New 
Jersey, 1804. In New York, by act of 181 7, slavery was abolished 
after July 4, 1827. 

357 



Constitutional History of the American People 

sustained them during this trial, just as the moral- 
ity of people in States farther south sustained 
them, at the same time, in making their slave 
codes more severe and their laws permitting 
emancipation less liberal. 

Until the adoption of the national Constitution 
the slave was not a political factor in American 
democracy. The "federal number," as the "three- 
fifths " clause was called, combined economics and 
politics. Climate forbade African slavery in the 
Northern States, and it there ceased to be an 
economical before it became a political element. 
Had it not been abolished in the North it would 
hardly have gained importance as a federal factor. 
Men may outwit a constitution ; they cannot re- 
sist climate. In the year when the Constitution 
went into operation there were nearly sixty thou- 
sand free persons of color * and nearly seven hun- 
dred thousand! slaves in the country. A little 
more than one -twentieth of the slaves were in 
Northern States \% about three-fifths § of the free 
persons of color were in the South, and of these 
fully three -fourths were in Delaware, Maryland, 
and Virginia. The right to emancipate a slave 
was incident to the right of property, but the 
exercise of the right involved questions of pub- 
lic policy. Was it public policy to encourage 

* 1790 — 59,527. 1 1790 — 697,681. 

% New Hampshire, 158 ; Rhode Island, 948 ; Connecticut, 2764; 
Pennsylvania, 3737; New Jersey, 11,423; New York, 21,324. 

§ Kentucky, 114; Tennessee, 361 ; Georgia, 398; South Caro- 
lina, 1801 ; Delaware, 3899; North Carolina, 4975; Maryland, 
8043; Virginia, 12,866. 

358 



Public Opinion in Slave-Holding States 

it? Was it public policy to restrict it? Could 
the emancipator be allowed to endanger other 
property by emancipating his own ? But could 
he not emancipate his own ? He could sell it, ex- 
change it, bequeath it, mortgage it, lend it, nourish 
it, starve it, and in some cases put it to death and 
not be indictable for homicide. 

Obviously, in a slave-holding State a free negro 
was an anomaly. Public policy made his presence 
unlawful, and went as far as prudence dare to 
make it impossible. The question of emancipa- 
tion was sure to come to the front whenever a 
slave-holding State should meet in convention to 
make a new constitution. But slight record re- 
mains of the debates on this question till after 
1840, although as the half- century closed it was 
exhaustively discussed in Kentucky, in Maryland, 
and in Virginia. There the result of the discus- 
sion was inevitable. As slave property in a border 
state was insecure, public policy dictated that 
everything be done to make it safer. Should 
emancipation be permitted ? Should the Legis- 
lature be forbidden by the constitution to allow 
the cessation of the relation of master and slave ? 
Yet how could the restriction be imposed if a 
slave was lawful property ? May a man not do 
as he wills with his own ? The result of the 
struggle was a compromise, as in Virginia in 
1850,* which forbade the Legislature to emanci- 
pate slaves, but, at discretion, it could impose re- 

* Constitution, 1850, Art. iv., Sees. 20, 21. 
359 



Constitutional History of the American People 

strictions on the power of slave-owners to do so. 
Public opinion did the rest. This may be said 
to have been the attitude of slave-holding States 
towards the question of emancipation in the mid- 
dle of the century. 

Free negroes, at the opening of the century, were 
in much the same plight all over the country. New 
Hampshire excluded them from the militia by law,* 
and every other State, either by law or by the con- 
stitution. Massachusetts compelled them to re- 
port for militia duty, under heavy penalty, but as- 
signed them to menial duties about the officers' 
quarters.! Occasionally their natural love of music, 
and their capacity to produce it, found them a more 
favored service as drummers or trumpeters. In 
1788^ Massachusetts forbade Africans to tarry in 
the State longer than two months, under penalty 
of hard labor. Exception was made for the citi- 
zens of Morocco, with whose Emperor a treaty ex- 
isted, but none was ever known to immigrate to 
Massachusetts from that country. When the nine- 
teenth century began, the act of 1703 was still in 
force in this State, requiring the emancipator of a 
slave to give fifty pounds security to the town treas- 
urer, to prevent the enfranchised from becoming a 
public charge. In other States the amount varied, 
but the general character of this law remained. 

On every side the free negro encountered de- 
grading restrictions. His certificate of emancipa- 
tion must be registered and his own copy be signed 

* Act of December 28, 1792. f Laws of 1699, p. 309. 

% March 26th. 

360 



The Penalties of Emancipation 

by two justices of the peace.* Without the copy- 
he could not remain in the county, nor travel out of 
it, under penalty of fine, imprisonment, or, often, 
of being claimed or sold as a slave.t Registration 
of the certificate was, however, seldom required, for 
obvious reasons. The free negro, like the slave, 
was rarely able to read or write, and as his habits 
were not those of an intelligent white, he was not 
accustomed to the care of papers. His certificate 
was easily lost, or stolen and destroyed. Unable, 
then, to prove his emancipation, he was forced back 
into slavery. If his case reached a court of jus- 
tice, he could not be a witness, for no negro or mu- 
latto, free or slave, could give evidence in a case 
in which a white man was a party4 Thus it fol- 
lowed that all over the country free negroes were 
constantly being seized as slaves. 

Their migration early became the subject of 
cruel laws. If emancipated, they must leave the 
State within a prescribed time, usually not over 
three months. But whither could they go ? Every 
man's hand was against them. If they went to 
another State, they would be arrested, examined, 
fined, imprisoned. On discharge, if caught within 
thirty days, they would be condemned to hard 
labor for life, or to be sold as slaves.§ Every State, 

* New Jersey, act of 1838. Ohio, acts of January 5, 1804, and 
February 27, 1834. Illinois, act of March 30, 1819. 

t New Jersey, acts of 1838, Ehner's Digest ; Georgia, December 
26, 1835; Louisiana, March 16, 1842. 

\ Acts of Ohio, January 25, 1807 ; Indiana, January 28, 1818; 
Maryland, December 31, 1801. 

§ Kentucky, acts of February 14, 1846; March 24, 1851. 

361 



Constitutional History of the American People 

slave or free, objected to their coming.* If near 
slaves, the free negro might excite an insurrection ; 
if among whites, it was said he was sure to become 
a vagrant and a criminal. Did not the reports of 
prisons and penitentiaries prove that more crimes 
were committed by negroes than by whites, in pro- 
portion to the numbers of the two races ? Possibly, 
was the reply; but the negro is not wholly to blame. 
What can be expected of a people whom it is a 
penal offence to teach even to read ? Throughout 
the broad land were tens of thousands of school- 
houses, yet no negro dare enter one, nor would 
any school dare to admit him, unless it be one 
kept by some fanatical Abolitionist. Very proper, 
all this ; for the free negro for ages has proved his 
incapacity to learn. Point to one negro, in all his- 
tory, who was a scholar or an artist, a painter or 
a poet. God intended him to serve others, and 
gave him a black skin to mark him and his de- 
scendants forever as the inferior race. Therefore, 

* See acts of the following Legislatures concerning this sub- 
ject: Ohio, act of January 25, 1807; excluded from the census 
by act of January 28, 1817. Illinois, act of March 30, 1819. The 
act of Delaware, January 25, 181 1, forbade them to enter the 
State, subject to a fine of ten dollars a week for remaining, 
or to be imprisoned and sold. Acts of February 16, 1849, and 
March 5, 1851. Acts of Maryland, 1806; March 14, 1832; De- 
cember, 1829. Acts of South Carolina, December 20, 1800; De- 
cember 20, 1825; December 19, 1835; December 18, 1844. Acts 
of Kentucky, February 23, 1808; February 24, 1846; made a 
felony by act of March 24, 1851. Acts of Tennessee, December 
16, 1831 ; December 21, 1851. Mississippi, acts of June 18, 1822 ; 
December 20, 1831 ; February 26, 1842. Arkansas, act of Jan- 
uary 20, 1843. The qualifying act of Missouri, of January 7, 1825, 
and the excluding act of February 16, 1846. 

362 



Increase of Free Negroes 

let the free negro — the worst of all negroes — go 
elsewhere ; forbid his coming into this State, and, 
if he persists in coming, make an example of him. 

It is rather curious that debates of this kind 
were heard oftener and at greater length in the free 
States — as in New York, in i82i,when the consti- 
tutional convention was discussing whether to limit 
the suffrage to white men; in 1838, in Pennsyl- 
vania; again in New York in 1846; in Iowa in 
the same year; in Illinois and Wisconsin in 1848; 
and in Ohio in 1850. No Southern Legislature or 
convention before 1868 ever debated the extension 
of the suffrage to the negro, save Tennessee in 
1834 and North Carolina in 1835, which discussed 
the abrogation of his right to vote under their 
first constitutions. It was bad enough to suffer an 
occasional case of emancipation. To a Southerner 
living before the war negro suffrage was fanaticism. 

Yet the number of free negroes increased, and, 
strange to say, quite regularly. For every one in 
the country in 1790 (59,527)* there were two in 
1800 (108,435), three in 1810 (186,446), four in 
1820 (233,634), five in 1830 (3i9>599)> six in 1840 
(386,293), and seven in 1850 (434,495). This was 
a greater rate of increase than that of the white 
population, which, on the basis of the number in 
1790 (3,172,006), was one and one-third in 1800 
(4,306,446), one and two-thirds in 18 10 (5,862,063), 
two and one-third in 1820 (7,862,166), three and 
one-third in 1830 (10,537,378), four and one-third 

* These figures are taken from table i., ninth census, 1790- 
1870, pp. 4-6. 

363 



Constitutional History of the American People 

in 1840 (14,195,805), and nearly six and one-third 
in 1850 (19,553,068). It was a higher rate also 
than that of the slave, which, as compared with 
the number in 1790 (697,681), increased one and 
one -third by 1800 (893,602), One and five-sixths 
by 1810 (1,191,362), two and one -half by 1820 
(1,538,022), three and one- third by 1830 (2,009,- 
043), three and five-ninths by 1840 (2,487,355), 
and four and five-eighths by 1850 (3,204,313). 

Yet. with the increase of free negroes the laws 
and public sentiment against them became more 
and more hostile. Emancipation in some States 
was regulated, practically, by a jury, and in nearly 
all was limited to persons in middle life who were 
fully capable of taking care of themselves.* Vir- 
ginia, in 1836, appropriated eighteen thousand 
dollars to remove them from the State.t Various 
schemes were proposed to secure a place of de- 
posit. Colonization in Liberia and Africa was the 
favorite, but the free negro showed slight desire to 
be returned to the Dark Continent.^ From first 
to last African colonization was a failure. Might 
not the Pacific coast offer a retreat ?§ It was too 

* Acts of Louisiana, January 31, 1827; Civil Code, Art. 185. 
North Carolina, act of 1837 (Iredell and Battles' Revised Statutes, 
p. 585). Forbidden by South Carolina, act of December 17, 1841. 
Tennessee, acts of November 13, 1801 ; February 5, 1842. 

t Act of March 23d. 

\ Tennessee, act of November 26, 1833, authorized the State 
treasurer to pay ten dollars for each negro who was removed to 
Africa by the Colonization Society. The joint resolution of the 
New Jersey Legislature, December 30, 1824, favoring colonization 
is typical of the attitude of the States towards free negroes. 

§ Act of Virginia, December 23, 1816. 

364 



Ostracism of the Free Negro 

far away to be neighbor to any of the States ; yet 
it belonged to them. Why not remove the free 
black to the Oregon country? Like other im- 
practicable schemes, this failed, and the States 
were left free to dragoon the unfortunates into 
migrating — somewhere. 

The result was the steady drift of this human 
flotsam and jetsam into the free States, and special- 
ly those along the border. From the Delaware to 
the Mississippi the outcry against negro invasion 
was heard for twenty years. So, too, in Louisi- 
ana, when, towards the close of the civil war, it was 
proposed to put the right to vote within reach of 
those negroes who, in the opinion of the Legislat- 
ure, might with safety to the State be intrusted 
with it on account of military service, the payment 
of taxes, or intellectual fitness.* 

Every slave-holding community from the dawn 
of history has lived in constant fear of a servile 
insurrection. The Spartans solved the problem 
by a periodical slaughter of their slaves. The Ro- 
mans attempted to solve it by making the slave- 
owners individually responsible for the safety of 
the State, and to this end the master's will was 
made law. Between him and his slave the dis- 
tance was measured by no human tribunal. 

American democracy was no exception. Its 
Southern portion lived in fear of an uprising. 
Against this every provision of the black code was 
aimed. In substance the plan was simple enough — 

* Constitution of 1864, Title iii., Art. 15. 
365 



Constitutional History of the American People 

to keep the slave an animal and to deprive him of 
all means of self-defence. It became necessary to 
include the free negro in that plan. He, too, was 
forbidden to carry arms without the consent of a 
number of slave-holders.* To teach him was an 
offence punishable by heavy fines.t Free negroes 
could not assemble for any purpose between sun- 
set and sunrise, nor at other times for religious 
purposes unless in the presence of at least five 
slave-holders. $ The preacher must not sow sedi- 
tion. In brief, free negroes were put under the 
same police regulations as slaves.§ 

In many respects they were worse off, because 
the slave was property, and enjoyed the stern pro- 
tection that property always receives. The free 
negro could neither protect himself nor, in many 
cases, find protection in the law. Persecution 
drove many to select a master and live as slaves 
— who, at least, had food, clothing, a cabin, and a 
protector. The ceaseless persecution of an ex- 
quisite system concentrated its torments upon this 
people without a country. They could not buy 
from a slave nor sell to one, nor be found in slave 
quarters. || No slave or free negro could lawfully 

* The Delaware act of 1806 forbade him to keep a dog or a 
gun; that of February 10, 1832, forbade him fire-arms; North 
Carolina, act of January 11, 1841. 

t Missouri, act of February 16, 1846; Virginia, act of April 7, 
1 83 1 ; if leaving the State to be educated, they were not permit- 
ted to return, by act of April 7, 1838. 

% Virginia, act of March 15, 1832 ; South Carolina, act of De- 
cember 20, 1800. § Georgia, act of December 7, 1807. 

|| North Carolina, acts of January 1, 8, 9, 1845 ; Georgia, act of 
December 21, 1839; Alabama, act of January 16, 1832. 

366 



The Pitiable Plight of the Free Negro 

administer medicine.* If a free negro sought to 
learn a trade, no one dare teach him. If a person 
hired one as a mason or a carpenter, the penalty 
was a fine of two hundred dollars.! 

There remained but one avenue of escape, and 
this led out into the wilderness. On a piece of 
abandoned land the free negro built his wretched 
hut, a strange, pitiful combination of savagery 
and civilization. How he existed he alone knew. 
Whether in the North or in the South, he dwelt 
apart from men, like the leper in Israel. Every 
offence committed in the region was attributed to 
him. If he raised a crop, the owner of the land 
compelled him to move on. If his chicken-yard 
prospered, his increase was at once attributed to 
the robbing of some white man's roost. Nothing 
good was credited to him. His children grew up 
wild. No teacher dare show them a book or teach 
them a letter. As they straightened their bandy- 
legs and shot up from infancy, they fished and 
stole and became the scavengers of the district. A 
selfish or pitying soul might take them to service, 
but with the almost inevitable result of finding them 
utterly untrustworthy, worse than slaves, and fit 
only for the whipping- post. Often they married 
slaves, and thus drifted back to the condition of 
their ancestors and stamped it upon their pos- 
terity. 

Towards the close of the half - century, many 

* Virginia, act of January 28, 1843. 

f Georgia, act of December 27, 1845 ; Alabama, act of January 
16, 1832. 

367 



Constitutional History of the American People 

free negroes were in service on the sailing-vessels 
and steamers plying in the Atlantic coast -trade 
and down the Ohio and Mississippi. Their con- 
dition was far better than that of most of their 
race. Bat as soon as the vessel came into a South- 
ern port the process of persecution began. Black 
freemen ran the vessel and brought it to the dock. 
There, black slaves, often under the whip, handled 
the cargo. The contrast did not require much 
education in the slave to bring his mind to a 
conclusion. A servile insurrection quickly over- 
whelmed his neglected soul. Escape, be free, be 
a man, be clothed, be fed, be paid, and be like 
those of his race before his eyes ! He could not 
withstand the temptation. He planned escape. 
A free negro was ever at hand as a confederate. 
The slave was secreted on board. He often came 
North concealed in a bale of cotton, or even 
nailed in a box. Helpless, half dead with fear, he 
had been tumbled into the hold. But the long 
voyage was towards the north star. What agonies 
he endured of hunger, cold, and thirst, or the more 
fearful fate of being stood on his head in the 
accident of stowing away the cargo ! 

Few escaped, but hundreds wanted to ; there- 
fore the laws respecting free negroes on vessel* 
were increased in severity. Florida, in 1849,* for- 
bade vessels having free negro crews to anchoi 
nearer than five miles to the city of Appalachicola.t 
Seven years before Louisiana had forbidden fre< 

* January 13th. 

t South Carolina, act of December 20, 1825. 

368 



Conflicting Interpretations of the Law 

negroes to come in on any boat* If found on 
shore, they were at once to be put in jail till the 
boat left port. On the arrival of a vessel with a 
crew of free negroes, the harbor -master informed 
some justice of the peace, who was alert to have 
proper warrants ready.t If one of the free negroes 
returned, he was liable to imprisonment for five 
years. Thirty days after his discharge, if found 
in the State, he would be imprisoned at hard labor 
for life. A fine of a thousand dollars was imposed 
on the person who carried a slave to a free State. 
As negroes look much alike, a free negro might 
easily be claimed as a slave. The North accused 
the South of selling free negroes into slavery 
under pretence that they were runaway slaves. 
The South accused the North of carrying away 
slaves as free negroes. Complaints by individuals 
easily became the ground of general accusations. 
Truth, and also violations of law, existed on both 
sides. As soon as the sacred realm of law was 
invaded, Governors and legislators roused up, not 
so much to repel the invaders as to defy one an- 
other. The Governors of several Northern States 
refused to deliver up certain runaway slaves as 
fugitives from justice. The Governors of several 
Southern States refused to deliver up certain free 
negroes who had been seized as slaves. Long 
and learned were the references to precedents — 
legislative, constitutional, historical, and judicial. 
Longer, and no less learned, were the resolutions 

* Act of March 16th. 

f Louisiana, act of March 16, 1842. 

I. — A A 369 



Constitutional History of the American People 

passed by contending Legislatures, and all with 
one, and only one, result — each party was the more 
convinced that he was right. Legislation recrimi- 
native in character followed. In the North it was 
popularly called the personal liberty bills ;* in the 
South it was entitled acts for the further protec- 
tion of slave property, and for other purposes. 
The legislative contest began about 1835 and in- 
creased in vehemence till the end came — thirty 
years later.t 

The case of the slave " Isaac," the property of 
one Colley, a citizen of Virginia, renewed the con- 
test.| He had been conveyed to New York in a 
vessel that ran regularly between the two States. 
Governor Seward refused to return him as a fugi- 
tive from justice, on the ground that, as slavery 
was contrary to the law of nations, the State of 
New York was under no obligation to deliver him 
up to the State of Virginia. Virginia replied that 
the case did not arise under the law of nations, 
but under a provision of the Constitution of the 
United States. Nor was it an ordinary provision, 
but one resulting from a compromise on the mak- 
ing and support of which the existence of the 
Union depended. 

It was not long before other slave-holding States 

* New York, May 18, 1840; see Virginia, act of March 18, 
1 841, passed as a rejoinder; also, act of March 27, 1843. 

f See Louisiana resolutions of March 16, 1842; Georgia res- 
olutions (in reply to the Massachusetts General Court), Decem- 
ber 28, 1842; also of December 25, 1843. 

% See Virginia resolutions in re, March 17, 1840; also, the res- 
olutions of the New York Assembly in re, April n, 1842. 

37° 



The Free Negro Admitted to the Franchise 

fell into line with Virginia. Resolution after reso- 
lution appeared, and threats of disunion were freely 
and formally made. 

The Missouri Compromise was effected at last 
when that State, by a solemn public act, promised 
not to exclude free negroes and mulattoes who 
were citizens of any State. In the year of this 
promise, 182 1, New York revised her constitution 
and extended to free negroes the right to vote.* 
This provision was in substance like the act of 18 15 
respecting such persons. Having proved to the 
Mayor that he was a freeman and a freeholder 
having real estate worth twenty pounds, or that he 
was a tenant paying a rent of forty shillings an- 
nually, and also paying a State tax, the free negro 
in New York City, in 181 5, was entitled to receive 
a certificate from the Recorder, which entitled him 
to vote. The constitution of 1821 increased the 
property qualification to two hundred and fifty dol- 
lars, and required him to reside in the State two 
years longer than a white man, but it opened the 
right of suffrage to him. This provision by New 
York proved in time to be of far greater impor- 
tance than the Missouri Compromise. It forced the 
issue on which the Union depended. It was the 
right of New York, as of every State, to prescribe 
qualifications for its citizens. In 1846 the State 
repeated the provision in its third constitution. It 
stood alone among the States. Massachusetts, New 

* The first discussion of the extension of the suffrage to ne- 
groes occurred in the New York convention of 1821. The chief 
advocate of the innovation was Rufus King. 

37i 



Constitutional History of the American People 

Hampshire, and Vermont allowed the free negro 
to vote, with a more liberal suffrage qualification. 
Elsewhere in the Union the right to vote was 
denied him. How was this condition of affairs to 
be harmonized with the national Constitution, 
which provides that " the citizens of each State 
shall be entitled to all privileges and immunities of 
citizens in the several States " ? Or with the pro- 
vision requiring the delivery of persons held to 
service in one State escaping into another. As a 
negro slave did not differ in appearance from a 
negro freeman, and as these were increasing in 
number at the rate of two a day, and as most of 
them, like ancient Gaul, looked to the North — 
whither also a stream of fugitive slaves was stead- 
ily flowing — it was impossible, under the laws, the 
constitutions, and the public sentiment of the time, 
to discriminate always between freeman and slave. 
The commonwealths were, therefore, in confusion 
over the question of citizenship. 

But Northern sympathy, such as it was, reached 
out only to the fugitive slave. The free negro was 
as unwelcome North as South.* He lived on the 
outskirts of towns and villages — the American 
Ishmaelite. Every man's hand was against him. 
Schools existed, but not for him or his children. 
Men who were conductors on the underground 
railroad, or who kept its way-stations, were not al- 



* Northern sentiment on the subject was typically set forth in 
the Pennsylvania constitutional convention of 1837. It runs 
through the thirteen octavo volumes in which the debates of this 
convention are preserved. 

372 



Persecution for Justice Sake 

ways anxious to have negro children attending the 
same schools with their own. Moreover, most of 
these schools were pay schools, for the free public- 
school system was not inaugurated until about 
1842, and was then planned solely for white chil- 
dren. 

Nor did hostility cease with the exclusion of 
negroes from the rate schools and public schools ; 
it was equally fierce at the prospect of schools for 
negroes only. Reference need only be made to 
the indignities heaped upon Prudence Crandall, a 
member of the Society of Friends, who, in 1832, 
established a school for young women in Canter- 
bury, Connecticut. She admitted one colored girl, 
and the phials of public wrath were at once emptied 
on her head. In town-meeting, her school was de- 
clared a public nuisance, for she announced that 
colored girls might attend. She was insulted, slan- 
dered, and persecuted in ways that only Yankee 
genius could devise. Her house was frequently 
assaulted, her well was filled with filth. She was 
boycotted by the neighborhood. And who were 
her neighbors ? Lawyers, doctors, farmers, me- 
chanics, clergymen, and the United States district 
judge. What horror filled these good people at 
thought of a negro school right at their doors ! 
She was denied a hearing at town-meeting; nor 
were her friends, among whom were Arthur Tap- 
pan and Rev. Samuel J. May, permitted to speak 
in her behalf. In spite of concerted opposition 
and persecution, she opened her school with about 
twenty pupils. Then local wrath took the form of 

373 



Constitutional History of the American People 

law. One of her neighbors carried an act through 
the Legislature making it a penal offence to estab- 
lish a school for the instruction of colored persons 
not inhabitants of Connecticut, or to harbor or 
board any such persons, without the written con- 
sent of the select-men of the town.* When news 
of its passage reached Canterbury, bells were rung 
for joy and cannon fired. 

On the 27th of June, Miss Crandall was ar- 
rested and bound over to appear at the Au- 
gust term of court. Would Connecticut send a 
woman to jail for daring to teach a negro girl to 
read ? She was placed in a cell just vacated by 
a murderer. Here she spent one night. In the 
morning bond was given, and she was free. Her 
imprisonment wrote the infamous law on the pub- 
lic conscience — if such thing there be — and soon 
was verified the truth of a later and now famous 
saying, " The best way to get rid of a bad law is to 
execute it." She was tried, and the jury brought 
in a verdict against her. But this was not the 
end. She again attempted to resume her work, 
but persecutions redoubled. One midnight her 
house was attacked by a mob and left a ruin. 
Then, and not till then, did she abandon her work 
— the benevolent undertaking of teaching a few 
negro girls the elements of knowledge, that they 
might teach free negroes.t 

* Act of 1833, in Connecticut Public Statutes, 1835, Title 53, 
p. 321. 

f Wilson's Rise and Fall of the Slave Power in America. Vol. i., 
P- 237. 

374 



Discrimination Against the Free Negro 

The attitude of the North towards free people 
of color became more and more favorable, however, 
as the designs of slavocracy to extend its power 
over Texas and California were disclosed. Re- 
monstrance against slavery extension began in 
1820, when Missouri sought admission, and was 
renewed when the question of the reannexation 
of Texas was proposed — the time of Miss Crandall's 
persecution in Connecticut. From about this time 
slave laws became more severe in the South, but 
the treatment of the free negro in the North be- 
came more humane. The changes are illustrated 
by the laws of Ohio. In 1804 a free negro was re- 
quired to record his certificate of emancipation in 
the office of the county clerk. No man could hire 
one unrecorded. In 1807 the law forbade any ne- 
gro to settle in the State without giving bond for 
five hundred dollars to the county clerk. A free 
negro could not give testimony when one party 
was white. By the act of 1829 negroes were 
specially prohibited from attending free white 
schools in Cincinnati. Taxes paid by negroes 
were to be expended, at the discretion of the 
school trustees, for the education of black chil- 
dren, but they were not taxed for the support of 
the schools for whites. At this time a black man 
could not gain a legal settlement in the State. 
Ten years passed, and an elaborate fugitive-slave 
law was enacted, " to secure the protection pledged 
by the Constitution to the South." It was on the 
statute-books only four years and then repealed. 
Ohio was becoming slightly antislavery. Its Legis- 

375 



Constitutional History of the American People 

lature sent forth a joint resolution in 1847 favor- 
ing the exclusion of slavery from Oregon, and one 
in the next year demanding its exclusion from 
whatever territory might be acquired from Mexico. 
It claimed that Congress had power to do this. 
In 1849* the Legislature sent forth a truly peni- 
tent resolution. As free persons of color had long 
been degraded and oppressed, Congress ought to 
give each of them eighty acres of land in some 
part of Mexico, set apart for these people without 
a country. On the next day the Legislature de- 
clared that Congress ought to abolish the slave- 
trade in the District of Columbia. 

That this repentance was genuine was proved, 
now, by the establishment of separate free schools 
for them, by the repeal of several discriminating 
acts,t and, further, by the passage of a law provid- 
ing, mirabile dictu, that when fewer than twenty 
black children resided in the school -district they 
might attend the white school, unless objection in 
writing should be made by a patron of the school 
or by a voter in the district.^ 

About this time the people of the State decided 
to call a convention to revise the constitution of 
1803. It was a liberal-minded body of men in 
many ways, and its handiwork, completed in 
March, 185 1, continues to be the supreme law of 
the State; but it limited the suffrage to white men. 

* March 23d. 

t February 10, 1849, repeal of acts of 1804, 1807, 1834, except 
the act excluding negroes from service on juries. 
t See also the act of February 24, 1848. 

376 



California and the Free Negro 

To extend it to free negroes, as some proposed, 
was thought both dangerous and degrading. It 
would convert Ohio into an asylum for free blacks 
and runaway slaves. But, while the convention 
was in session, an incident occurred which sud- 
denly sharpened public sentiment. On the 6th 
of June, 1850, seven children and one grandchild 
of a free negro woman, named Peyton, were ab- 
ducted into Kentucky. Nine months later the 
Legislature instructed the Governor, Reuben 
Wood, to inquire into the crime and restore the 
children at the expense of the State. 

As the admission of California grew into a na- 
tional question, the State Legislatures divided — the 
Northern, like Wisconsin, demanding the extension 
of the Ordinance of 1787 over it; the Southern, 
like Alabama, declaring that the State would make 
common cause with other slave-holding common- 
wealths for the defence of the institution of slavery, 
because Congress had no power whatever over it. # 
Though California came in as free soil, its consti- 
tution excluded free persons of color from the 
franchise and barely missed containing an article 

* Resolutions favoring the admission of California and the 
limitation of slavery were passed by the Legislatures of — Maine, 
July 27, 1849; New Hampshire, January 4, 1849, July 10, 1846; 
New York, December 7, 1847, January 13, 1848, January 4, 1849; 
Ohio, February 25, 1848; Michigan, January 13, 1849, February 
23, 1850; Wisconsin, February 8, 1849, J une 2I » 1848. Counter- 
resolutions were passed by the Legislatures of — Virginia, January 
20, 1849; South Carolina, December 20, 1850; Georgia, February 
8, 1850; Florida, January 13, 1849; Texas, February 11, 1850; 
Alabama, March 6, 1848; Mississippi, March 5, 1850 (the most 
elaborate report on the subject by a Southern Legislature). 

377 



Constitutional History of the American People 

wholly excluding them from the State. Confident 
that public sentiment would regulate the matter, 
and that no free negro would travel so far, the 
proposition was allowed to fall through. The 
attitude of California towards the free negro, in 
1850, was typical of the attitude of the North. As 
slavery was forbidden there, the free negro was 
not a subject for legislation. A few soon found 
their way into the new State, chiefly as stewards 
on the Pacific passenger - ships and steamers. 
Gradually they established themselves on shore 
as servants, barbers, and occasionally as valets, 
but they did not venture into the mining-camps. 
Their appearance there would have started a white 
insurrection. 

The story of the struggles of the free negro is 
a painful one, yet he steadily gained ground dur- 
ing this half- century. This class multiplied so 
rapidly in Maryland that its presence — some 
seventy-five thousand — in the State became a 
most vexatious problem. The number of free 
negroes fell short of the number of slaves in 
the State only by fifteen thousand, and the two 
parts of the black population were within ten 
years of equality in numbers. The constitutional 
convention of 1850 was called, largely to solve the 
problem. It made no provision on the subject 
other than to forbid the Legislature to abolish the 
relation of master and slave. An effort was made, 
though unsuccessful, to incorporate a clause like 
that in the Virginia constitution of the same year, 
empowering the Legislature to relieve the common- 

378 



Foreign Immigrants Cow the Negro Voter 

wealth of its free negro population " by removal 
or otherwise." # This was the typical attitude of 
the South towards the freeman of color. Thus, 
North or South, he was a man without a country. 
Though New York at this time contained nearly 
fifty thousand of this population — which in a State 
having manhood suffrage would give ten thousand 
voters — only about one thousand were voters; not 
so much because they lacked the constitutional 
qualifications as that they did not dare to vote. 
Hostility to the negro voter was intensified by 
foreign immigration. Few Irishmen felt con- 
strained to allow a negro to vote. 

As free schools overspread the land, particularly 
the North, the free negro had to deny himself fur- 
ther. Yellow-fever or the small -pox would not 
more suddenly and surely break up a school than 
the presence of a negro pupil. Nor has racial hos- 
tility of this kind yet wholly disappeared. In the 
far North — as in New Hampshire, Vermont, North- 
ern New York, and Michigan — a negro child was 
somewhat of a curiosity and was suffered to attend 
school in peace. A Chinese baby or a papoose 
would have been given the same passing atten- 
tion. But Northern patience with the free ne- 
gro's delinquencies was short; perhaps shorter 
than Southern. Somewhat paradoxically, the ab- 
olition sentiment was strongest in the cold parts 
of Vermont, and the laws enacted against run- 
away slaves — the black code in general — were 

* Virginia, constitution of 1850, Art. iv., Sees. 20, 21. 
379 



Constitutional History of the American People 

most terrible in tropical Louisiana. Extremes 
met in Virginia. 

From the border States to the great lakes ran 
the various branches of the underground railroad. 
Thousands of fugitive slaves reached Canada over 
this line. Its management baffled Governors, 
sheriffs, and constables. The men and women 
who kept its " stations " were among the most re- 
spectable and intelligent in their community. 
They held slavocracy, and its aiders and abettors, 
in contempt. They thought it a virtue to break 
the fugitive-slave law. They were the only peo- 
ple in the North who treated negroes as they 
treated other men and women. But their work 
was done in secrecy, often in fear, and under the 
cover of night; and sometimes, when the fugitive 
was in sight of safety, the law seized him and 
thrust him back into slavery.* 

* At the mouth of the sixteen - mile creek, in Erie County, 
Pennsylvania, lived a Whig farmer named Crawford. His house 
stood in a grove of locust-trees, a few rods from the beach of 
Lake Erie. He was an agent on the mysterious road, whose 
frightened dusky passengers were moved at night, secretly, from 
station to station. One evening in early autumn, at which time 
the Lake Shore country of to-day is radiant with the odor of 
the vineyards, and the Virginia creeper hangs in prismatic hues 
about the trunks of the oak and the fruitful chestnut, a peculiar 
knock was heard at Crawford's door. There stood a neighbor 
named Cass, an Englishman who had recently started a woollen 
mill near by. Mrs. Crawford assured him that the family was 
alone. He gave a low whistle, and a man timidly came out of the 
bushes and drew near. He was a fugitive slave from North 
Carolina. He was kindly received, was given his supper, and put 
to bed in the spare room. About two o'clock in the morning 
he was suddenly aroused. Another neighbor, John Glass by 
name, who had a foundry at the mouth of the creek, had re- 

380 



Strong Race Hatred in the North 

Hostility towards the free black was due in the 
North principally to racial prejudice. This showed 
itself in various ways. Negroes were forbidden to 
learn trades in the South except as their owner 

ported danger. The sheriff was in the village about a mile to 
the south, and in the morning would surely search Crawford's 
house, for he was known to be an Abolitionist, and was suspected 
of secreting slaves. The frightened negro begged to be taken at 
once across the lake, which is here about sixty miles wide. With 
Canada in sight, must he be dragged back into slavery? The 
men were in doubt what to do, when Mrs. Crawford suggested 
that the negro go at once with Glass to his foundry, where he 
should be stowed in the bottom of a great wagon, be covered 
with frames and patterns, and be started at once for Erie, six- 
teen miles away. Glass often made the trip in his business, and, 
as he always started before daylight, his wagon would not excite 
suspicion. 

As soon as the negro was gone Mrs. Crawford called her eld- 
est son and bade him finish his sleep in the negro's bed. If the 
sheriff asked him any questions, he could say that he had not 
seen the negro and he had a bad cough. His younger brother 
was left in the bed where the two had been sleeping. Early in 
the morning the sheriff appeared, read his warrant, and began 
searching the house. He was compelled to be satisfied with the 
family's explanations, and went away, turning his horse's head 
towards Erie. Glass had some five hours' start, and was now 
rapidly approaching the city. He had stopped, as usual with 
travellers, at the half-way house, where he watered his horses, 
leaving them for a few moments while he got a hasty breakfast. 
He was about driving on when a farmer, who lived some miles 
to the east, now on his way home from Erie, drew up to water 
his team. He had left Erie about the time Glass had left his 
home. As it became light enough for him to read, he noticed 
here and there posted on the trees an offer of a large reward for 
the capture of one Ned, a runaway slave from North Carolina. 
The reward was larger than usual. 

As he was watering his horses it occurred to him to mention the 
reward to Glass, and, stepping forward, while talking, his eyes ran 
over the load of frames and patterns. Quickly he detected the 
negro beneath them. Knowing that Glass was an Abolitionist, 
for he himself was an equally ardent pro-slavery Democrat, he at 

381 



Constitutional History of the American People 

might consent, for his own purposes.* Usually, 
on a large plantation, there were carpenters and 
cobblers and blacksmiths among the slaves, but 
rarely any one who could do a piece of work re- 
quiring skill. In the North no man wanted a 
negro apprentice, and, except at farm-work in the 
same field, no man was seen associated with a ne- 

once took in the situation. Discreetly concealing his discovery, 
he jumped into his wagon and started his horses rapidly towards 
his house and the constable's. Glass, with equal speed, started 
for Erie, to deliver the negro into the hands of a faithful captain, 
who could be relied on to take him across the lake. He sus- 
pected that the negro had been discovered and that the man 
would not hesitate to betray him for the reward. Meanwhile, 
the sheriff was galloping rapidly towards Erie, when he met 
the informer and the news he was seeking. Quickly agreeing 
about payment of the reward, he spurred on after the foundry- 
man. Glass had reached the dock and had driven into a shed, 
where, concealed from public view, the negro was quickly handed 
over to the captain. He was put into a dory, covered with tar- 
paulin, and rowed to a little sloop at anchor in the bay. Just as 
he was climbing on board, the sheriff appeared on the wharf, 
quickly detected the negro, and soon had him in his possession, 
chained and manacled. At once the bewildered negro was 
roughly started towards the South, was returned to his master, 
and lost in slavery. 

The reward, a small fortune for those times, was paid to the 
informer. Fifty years after the event its incidents were related 
to me by the woman who so zealously strove to give liberty to 
the wretched African. With old age had come total blindness, 
" but," said she, " my sight was not taken away before I was per- 
mitted to see slavery abolished. And more — though it is not for 
me to tell it — the blood -money received for that poor negro 
brought wretchedness to three generations of the informer's 
family, and, strange to say, was finally lost in speculating in 
Southern lands. 'Justice and judgment are the habitation of 
Thy throne ; mercy and truth shall go before Thy face.' " 

* By the Georgia act of December 27, 1845, to contract with a 
free person of color as a mechanic or mason, to erect or repair a 
building, was punishable by a fine of two hundred dollars. 

382 



Forcing the Negro from the Labor Market 

gro in work. Massachusetts complained, through 
its Legislature, in 1821,* that free negroes were 
forced into Northern States, and specially into 
Massachusetts, where they became a disorderly, in- 
dolent, and corrupt population in the larger towns. 
Yet in these they were excluded from the schools, 
and from any kind of labor except that of the 
lowest grade. In New York, and Philadelphia 
also, the Northern cities in which they were most 
numerous, they were rigorously excluded from the 
schools, and as soon as foreign immigration set 
in and the Irish began to contend for occupation 
as unskilled laborers, the era of labor riots began, 
in which public opinion was outrageously on the 
side of the aggressors. 

It is not strange that the North catalogued free 
negroes as a part of the criminal class.t Nothing 
else was left to them than to play the part of social 
outcasts. The Massachusetts House of Representa- 
tives expressed Northern opinion in its resolutions 
against the substitution of free negroes " in occu- 
pations which, in the end, it would be more advan- 
tageous to have performed by the white native 
population." \ 

The Northern churches, like the Southern, tol- 
erated black skins in the congregation, chiefly be- 
cause there is no overcrowding on the road to heav- 



* Resolution of House of Representatives, June 4, 1821. 

t This is brought out in the discussion of negro suffrage in 
the constitutional conventions of New York in 1821 and 1846; in 
that of Pennsylvania in 1838. 

% Resolution of House of Representatives, June 4, 1821. 

383 



Constitutional History of the American People 

en, and competition for future rewards does not 
affect the social standing or the trade or the poli- 
tics of the world. An ebony face in the gallery was 
likely to put the missionary spirit of the society 
into a mild glow, and charity takes pride in reach- 
ing the outcasts. It followed that what little com- 
fort the free negro got in the North was chiefly 
of an ecclesiastical character. His theology was 
properly attended to. No man could listen to his 
petition to be allowed to learn a trade or to go to 
school ; but his quaint supplication, encouraged at 
prayer-meeting, was something of a sensation. His 
body and mind might be dark, but his soul, it was 
said, was full of light. Some of the congregation 
were puzzled how a person who could " wrestle so 
powerfully in prayer " could be so persistent a 
thief, so indolent, so useless; but probably it was 
all in fulfilment of sundry obscure references to 
Ethiopia in the prophecies. There was some 
contest among the various churches to enroll the 
object of so much attention from the prophets. 
The Sunday-school taught him to read, and thus 
he found an entrance into a hitherto forbidden 
world. He came with wife and children, and thus 
circumvented the State. 

Down to 1840 free public schools were not com- 
mon North or South. No Southern school ad- 
mitted a negro, and no Northern school welcomed 
him. As soon, however, as the free-school system 
was understood by the people, and this may be 
said to be about 1845, public policy demanded that 
all the children of the community should be made 

384 



Fighting for Popular Education 

welcome.* It is now forgotten that serious, and 
for a long time successful, opposition was made to 
common schools. Their establishment was a pub- 

* Governor J. W. Dana, of Maine, in his message to the Legis- 
lature, March 19, 1847, complains of the lack of public interest in 
the free schools. Connecticut practically established a common- 
school system in 1841. New Jersey attempted free schools, on a 
limited scale, under the act of February 12, 18 17. Pennsylvania 
inaugurated a system by the acts of April 1, 1834, and April 15, 
1835, but it did not prosper until the acts of April 11, 1848, and 
April 7, 1849. Delaware, by acts of January 28 and February 
7, 1817, established a fund for the education of poor children. 
The African School Society of Wilmington was organized under 
the act of January 20, 1824. North Carolina established a school 
system by the act of January 1 1, 1841. In South Carolina, schools 
for the poor began under the act of December 11, 181 1, which 
was many times amended later; free schools began under the 
acts of December 19, 1836, and December 17, 1841, especially the 
latter act. In Georgia a general educational system was inaugu- 
rated by the act of December 28, 1838 ; see also acts of December 
19, 1829; December 24, 1837; December 10, 1840. In Missouri, 
act of 1839. See joint resolution of Florida Legislature, relative 
to education, December 21, 1846. See free-school act of Louisi- 
ana, May 3, 1847; also constitution of 1845, Sec. 135. Kentucky 
began its school system under the act of January 29, 1830. See 
Tennessee acts of 1826, 1829, and 1835; also constitution of 1834, 
Art. xi., Sec. 10. Mississippi inaugurated its common schools un- 
der the act of March 4, 1846. Arkansas, under the act of Feb- 
ruary 3, 1843. Ohio, act of January 30, 1827; a school system 
for whites, February 28, 1834; March 27, 1837; March 7, 1838. 
The act of March 23, 1840, abolished the office of Superintendent 
of Common Schools and authorized the Secretary of State to em- 
ploy a clerk at four hundred dollars a year to perform its offices. 
Separate schools for negroes were inaugurated under the act of 
February 10, 1841, and that of February 24, 1848. The Indiana 
Legislature, by joint resolution, January 9, 1821, recommended the 
appointment of a committee to draft a bill for a general system 
of education, " from township school to university," in accordance 
with the constitution, 1816, Art. ix., Sec. 2. See act of February 
2, 1832. Illinois established free schools under the act of January 
15, 1825. 

I.— BB 385 



Constitutional History of the American People 

lie issue from 1835 to 1845. The public accepted 
them chiefly because they would enable the chil- 
dren to get on in the world more easily and suc- 
cessfully than their parents had done. Moreover, 
education was a panacea for the ills of society. 
Send the children to school, and vice and immo- 
rality would disappear. Through this open door 
of reform negro children in the North went to 
school, and, it may be said, almost as soon as the 
children of the poorer whites. 

In the South an entirely different idea of public 
policy prevailed — dominated by slavery. It ex- 
cluded the negro, slave or free, from every means 
of information likely to make him intelligent. He 
must not learn to read, nor be suffered to preach, 
except in the presence of white men. The camp- 
meeting, ever dear to the African heart, was for- 
bidden unless controlled by the presence of 
whites.* Slavery thus put a muzzle on speech 
throughout the South, and at last custom became 
not only a property of easiness, but an article of 
faith. 

A religious system rarely escapes becoming ty- 
rannical, because religion is usually the chief police 
system of the State. Public policy often dictates 
cruel laws, and religion rarely sets itself against 
the laws. The code found even more enthusiastic 
advocates in the pulpit than in the Legislature or 
the courts. This was inevitable in a religious sys- 
tem supported by the voluntary contributions of 

* For a typical piece of legislation on the subject, see act of 
Alabama, January 16, 1832. 

3^ 



Slavery a Costly Institution 

slave-holders. Pro-slavery and apologetic sermons 
were not infrequent in the North. Clergymen are 
habitually legalists and conservatives ; therefore 
they preached obedience to the law, prayer for its 
repeal, and patience under its yoke. Meanwhile, 
a revolution was in progress. 

It must be admitted that modern Christianity 
has tended ever towards the emancipation of 
slaves. This has been partly due to sentiment, 
partly to a sense of justice, and largely to eco- 
nomic necessity. There may have been a time 
when slavery was profitable in Egypt, or even in 
the United States. It is difficult to fix the times, 
and in this country it ceased long before 1850. 
I know of no better proof of the unprofitableness 
of slavery than that produced in the Kentucky 
convention of 1849.* It was there shown that 
Essex County, in Massachusetts, produced as much 
as the entire State of South Carolina. The start- 
ling conditions that made this truth possible are 
clear enough now, but were realized by few, North 
or South, then. The world is slowly learning 
that freedom is cheaper than slavery ; those who 
have a conscience have always known that free- 
dom is better. 

During the first half of the nineteenth century 
every discovery, every useful invention contributed 
to the betterment of the free negro. As machin- 
ery was introduced, wealth increased, labor was in 
demand, and population was on the move, west- 

* See Chap. vi„ Vol. ii. 
387 



Constitutional History of the American People 

ward. It is somewhat vague and paradoxical to 
say that the free negro participated in the general 
benefits of the time, after showing that he was ex- 
cluded from most of them. However, it is true. 
He gained slowly and lost nothing. Though wel- 
comed nowhere, he found his way everywhere. 
The new West frowned on him; but he went West. 
It was hard for him to get title to a piece of land. 
Even liberal Iowa made vigorous efforts to prevent 
his becoming a settler. Local claim associations, 
such as that of Johnson County of 1839, rigorous- 
ly discriminated against him, and for a long time 
made his residence in the Territory unsafe.* As 
the American world grew larger, and ceased, or 
tended to cease, being provincial, the people of the 
North let the free negro alone. It was a great op- 
portunity for him — indeed, the greatest that ever 
came to his race. As soon as he was let alone he 
began to prosper. There is a hint here for those 
who are seeking the solution of the race problem 
in America. As soon as the negro was suffered to 
earn his own living, like the rest of the world (who 
earn it), difficulties began to disappear. Legislatures 
ceased sending out resolutions in complaint of free- 
negro invasions. Remonstrances against negro 
children in the public schools became less common. 
A negro was seen here and there planing a board, 
shingling a roof, mending a shoe, or laying a wall. 

* See the Constitution and Records of the Claim Association 
of Johnson County, Iowa, with Introduction and Notes by Benja- 
min F. Shambaugh, A.M. ; 8vo, 196 pp. The State Historical So- 
ciety of Iowa, Iowa City, Iowa, 1894. 

388 



Softening of Public Feeling Towards the Negro 

A man thus engaged was not likely to belong to 
the criminal class. Public policy began to discover 
this simple fact, as the half-century drew to a close. 
Public opinion began to permit what it had long 
thought, " Give the negro a chance." Yet the priv- 
ileges accorded him in the North were, as yet, by 
sufferance rather than by law. A vague sense of 
economic necessity was putting the laws in their 
true light. They were fast falling behind the times. 
Everybody could find work in the North. This 
was the primary favorable condition. Had it been 
otherwise, the condition of the free negro would 
have been hopeless. If in the North he was seen 
with a gun, no one was terrified. Squirrels and ducks 
were plentiful. In the South arms were denied him 
under severe penalties.* There a free negro with a 
shot-gun suggested a servile insurrection. As the 
code grew blacker, so did the North — for its negro 
population increased more rapidly. Numerically, 
the gain was in the States north of the Ohio. 
From 1840 to 1850 there was scarcely any increase 
in the negro population of New England and the 
Middle States. In Massachusetts and New York 
it decreased. The lines of least resistance for the 
white and black alike ran into the Northwest. 
This was due chiefly to climate. Ohio, Indiana, 
Southern Michigan, and Illinois are warmer than 
Massachusetts or New York. Unconsciously, the 

* Acts of Delaware, February 10, 1832; Maryland, March 14, 
1832; Virginia, March 15, 1832 ; North Carolina, January 11, 1841 ; 
Georgia, December 7, 1807. Nat Turner's insurrection (1831) was 
the immediate cause of severe laws on this subject in the South. 

389 



Constitutional History of the American People 

negro was travelling along isothermal lines. It 
followed that opposition to him continued in the 
Northwest after it had ceased in New England, 
New York, and Pennsylvania. Objections heard 
in New York in 182 1 were repeated in Ohio in 
185 1. They were heard in Wisconsin and Iowa 
in 1847; m Illinois in 1848. But there is a new 
tone to the general discussion — a tone of greater 
toleration. It is heard in Michigan in 1850.* 

Selfishness is at the bottom of all this hostili- 
ty. This is illustrated in California.! The negro, 
free or slave, should be excluded, lest he deprive 
white men of a monopoly of the mines. This was 
exactly the spirit of Massachusetts in 182 1, of 
Pennsylvania in 1838, of Iowa in 1847. It was 
the spirit of slavery, for that is the spirit of selfish- 
ness on the most gigantic scale. 

It seems as if white men, in democratic America, 
during this half - century, denied rights to black 
men, lest the wealth of the country — social, political, 
industrial, and educational, be divided with them. 
A fateful step had been taken by the most power- 
ful commonwealth — New York — when, in 182 1, it 
made it possible for a negro to become a voting 
citizen. True, there was discrimination in the 
grant. The negro must have a clear freehold es- 
tate of the value of two hundred and fifty dollars ; 
must have been rated, and paid taxes on the es- 
tate, and have been a citizen of the State for three 

* See Chap, viii., Vol. ii., pp. 215, 235 ; Chap, ix., pp. 249-254. 
t See Chap, x., Vol. ii., pp. 297-304, 315 ; Chap, xi., pp. 316-330, 

353-362. 

39° 



Race Prejudice in California 

years. A white man could gain residence in a 
year, and was not required to own real estate or 
personal property.* But the negro was given a 
chance, and that changed the history of democracy 
in America. The influence of New York, in this 
respect, is clearly seen when California sought ad- 
mission into the Union. Recognition of negro 
suffrage might be delayed, but it must come in 
time. When, in 1821, Rufus King introduced the 
revolutionary provision into the proposed consti- 
tution of New York, he cited as sufficient author- 
ity the clause in the national Constitution declar- 
ing the equal rights of the citizens of the several 
States. In its consequences the New York inno- 
vation ranks in importance with the Emancipa- 
tion Proclamation and the abolition of slavery, 
for which it paved the way. 

So strong was race prejudice in 1850 that Cali- 
fornia only by a meagre majority escaped enrol- 
ment in the list of States which then excluded 
free persons of color.t Their exclusion, it was 
thought, could safely be left to public sentiment. 
At this time the act of California was of critical 
importance. Doubtless the State must be in- 
cluded among those of the time holding most lib- 
eral ideas. It made its soil free, and, at least by 
the letter of its law, it excluded no freeman. It 
stands, therefore, as the embodiment of American 
sentiment at this time, and pointed the way by 
which things and men were going. It intimated 

* New York, Constitutions of 1821 and 1846, Art. ii., Sec. i. 
f See Chap. x\„ Vol. ii., p. 361. 

39 1 



Constitutional History of the American People 

that the time was at hand when it would be im- 
possible in America for half a million free people 
to be a people without a country. Before the 
change implied in this promise could be realized, 
all things pointed to a fierce struggle. Its nature 
was outlined in the debate in Louisiana* in 1845, 
and in Kentucky four years later; in the resolu- 
tions of State Legislatures relative to slavery ex- 
tension, and in the convergence of population on 
Kansas. These signs of the times pointed out 
that the impending struggle was between two 
systems of government — one founded on prop- 
erty, the other on persons. Primarily, it was a 
struggle for the extension of the franchise, for 
with the franchise go all rights known to free- 
men. 

On the threshold of this struggle between State 
sovereignty and national sovereignty, between free 
labor and slave labor, between suffrage extension 
and suffrage limitation, the commonwealths divid- 
ed into two groups. Public opinion in the North 
was shifting rapidly, and as yet was uncertain. The 
border States, Kentucky claimed, held the key to 
the future of the Union. The word "white," in 
all Southern and in most Northern constitutions, 
yet preserved the legal fiction that government 
was instituted for the exclusive benefit of a fa- 
vored race. This fiction continued the stern fact 
of history. There was, however, a new shade of 
color to the fiction. A third estate lay between 

* See Chap, xiii., p. 400. 
39 2 



Northern Ameliorative Measures for the Negro 

the slaves and the slave-holders — the free negroes. 
They gravitated towards slavery in the South; 
in the North, towards citizenship. As the half- 
century closed, their children were found in the 
free schools of New Hampshire, Vermont, Mas- 
sachusetts, New York, Ohio, and Michigan. In 
these States, and in Pennsylvania, Maryland, Wis- 
consin, and Iowa, occasionally negroes were suf- 
fered to work as mechanics, but as yet they pos- 
sessed little skill in the use of tools. Ages of 
slavery had robbed them of much of man's tool- 
using ability, but not wholly of his tool-using ca- 
pacity. On the emotional side of their religious 
nature they were inferior to none of the whites 
among whom they lived. Theirs was an anoma- 
lous condition for freemen in a democracy. Legis- 
lation in the South, keeping pace with public opin- 
ion, became more and more oppressive. In the 
North it slowly became remedial and helpful. In 
some degree the miserable condition of this class 
was mitigated by its ignorance of better things. 
It had never known opportunity. It had for ages 
known only the degradation possible in slavery. 
Free schools were organized just in time to bene- 
fit this class in the North. Negroes were suffered 
to attend lest they grow up wholly in ignorance 
and vice, and thus ultimately cost the State many 
times more than the expense of teaching them to 
read and write. Mechanical trade - schools were 
already thought of, but legislative notions respect- 
ing them were of a different order from those 
which called into existence the later technical 

393 



Constitutional History of the American People 

schools.* Socialism had not yet gone so far as 
to possess the public mind that the state owes to 
every citizen a bread-winning education. It may 
be said that whatever the state did for the free 
negro down to 1850, it did as a means of self- 
protection, not for love of the negro. Public 
schools were a form of public insurance against 
vice and crime, or, as was often said, " the cheap 
defence of the nation." 

Self-interest compelled the Northern States to 
include the free negro in the list of its beneficia- 
ries. Self-interest compelled the slave - holding 
States to exclude him from the list. He must be 
treated as King James treated the Puritans — 
harried out of the land. It is rather curious that 
free negroes were permitted, for a time, to be en- 
rolled in the militia in one State — and that Louisi- 
ana. The constitutions of the Northern States 
carefully excluded them. In Louisiana a special 
act of the Legislature! authorized free negro troops 
to be raised during the second war with England, 
but only those residing in the parish of Natchi- 
toches, who possessed real estate of the value of 
one hundred and fifty dollars, were eligible. This 
was the only instance of the enrolment of negro 
troops during the half -century. General Jackson 
wrote, in a letter to President Monroe, describing 
the battle of New Orleans, " I saw Pakenham reel 
and pitch out of his saddle. I have always believed 

* See act of the New Hampshire Legislature of July 4, 1834, 
providing for a " manual - labor " or "self-supporting system of 
education." t Act of January 30, 181 5. 

394 



Concessions Prompted by Exigencies 

that he fell from the bullet of a freeman of color, 
who was a famous rifle-shot, and came from the 
Attakapas region of Louisiana."* 

If war be man's most glorious occupation, and 
the death of the enemy's commander-in-chief be 
desirable, America should erect a monument to 
this forgotten free negro, who, on a property qual- 
ification of a hundred and fifty dollars, served so 
faithfully at the battle of New Orleans. Was not 
this almost as great a service as to command a 
negro regiment? Less than a half-century later 
a great many people in the North were converted 
to the idea that a black skin was good enough to 
stop bullets fired by those fighting for slavery. 
The case was a compound of justice and military 
necessity. What gains were made during this 
half -century by free persons of color were per- 
mitted by the white race, partly as an act of jus- 
tice, but principally because of economic neces- 
sity. This last phrase was seldom heard from 
1800 to 1850. It is of more recent use. Few 
then living realized that the free negroes of the 
United States were both political and economic 
barometers. A despised race is not likely to be 
taken as the unit of measure of civilization. There 
are many units in America, and one was the con- 
dition of the free negro. It was no more anom- 
alous than the existence of slavery in a democ- 
racy, the corner-stone of whose political theory was 
and is the equality of men. A democracy that en- 

* The Century Magazine, January, 1897, p. 361. 
395 



Constitutional History of the American People 

slaved three millions would be expected to deny 
citizenship to freemen of color. As long as this 
continued freedom in America was a paradox. 

What to do with the negro, free or slave, was 
the first and most serious question whenever a 
Territory was organized, a State admitted, or its 
government revised. The question was funda- 
mental, because it involved the right of a man 
to himself, as well as the right of one man to 
own another. It was involved in the apportion- 
ment of representation, as illustrated in Louisiana 
in 1845 ; in the definition of legislative powers, as 
illustrated in Kentucky in 1849; and again in the 
discussion of the franchise and the rights of citi- 
zens, as illustrated in California and Michigan in 
1849 and 1850. The question had been discussed 
before,but in narrower relations. New York began 
the discussion in 182 1, and continued it in 1846. 
Virginia heard Marshall and Madison and Mon- 
roe and their distinguished colleagues discuss it in 
1829. Pennsylvania labored to solve the question 
nine years later. North Carolina, in 1835, met m 
convention for the express purpose of taking from 
free negroes the right to vote. 

Other questions agitated the public. Should 
judges be elected ? Should circuit give place to 
resident district courts ? Should representation 
be apportioned according to wealth or persons, 
and if by persons, should slaves and free negroes be 
included ? What powers should be granted, what 
denied, to the Legislature ? How should corpora- 
tions be created and regulated ? To what extent 

396 



Organic Laws of the State Constitutions 

should free schools be established ? To whom 
should the rights of citizenship be granted ? As 
the century grew older, these questions stood for 
reforms. They were answered in all the com- 
monwealths, but the answers are not recorded in 
all. From 1776 to 185 1 the Union increased from 
thirteen to thirty- one States, and these adopted 
fifty-nine constitutions. Each of these was a re- 
form constitution. Each stands for what was con- 
sidered, at the time it was made, a remedy for ex- 
isting evils. It would be highly interesting and 
instructive to know by what process these organic 
laws came into being; what arguments were ad- 
vanced, what remedial measures were proposed 
but rejected ; what interpretation of civil needs 
was made by the convention that undertook to 
give the State a better fundamental law. But this 
knowledge is denied us, save for less than one- 
third of the constitutions adopted. The journals 
of nearly fifty of the constitutional conventions 
from 1776 to 185 1 are in print, but they are a 
colorless and unsatisfactory record. It is from the 
debates in seventeen of these conventions that we 
obtain our chief knowledge of the ideas that domi- 
nated our organic laws during the three quarters 
of a century that they cover. A perusal of these 
debates discloses much repetition of wants, of 
remedies proposed, and of remedies adopted. In 
each State there are needs purely local, but there 
are reforms demanded by all. The extension of 
the suffrage, the apportionment of representation, 
the provision for public schools, the establishment 

397 



Constitutional History of the American People 

of a secure banking system, the exact apportion- 
ment of influence in the government between city 
and country, immigration, the rights of married 
women, and the reorganization of the judiciary 
come up repeatedly all through these years. Legis- 
lative functions demand definition ; trial by jury 
must be subjected to new tests ; negro emancipa- 
tion and slavery provoke discussions in all the 
Southern States ; but from the debates as they 
come down to us we turn away, confirmed in bur 
belief in the truth of Goethe's saying that there 
are many echoes, but few voices, in the world. It 
is the few voices that we wish to hear, because they 
speak with authority during these strident years. 

Much of the constitutional history of the first 
half of the nineteenth century is abbreviated in 
the debates of the constitutional conventions that 
assembled between 1845 an d 1850. The civil 
problems that agitated the country during these 
years had been accumulating a long time. Louisi- 
ana, in 1845, sought to solve them, and may be 
listened to as the voice of the Gulf States. Ken- 
tucky debated them in its great convention of 
1849, and it spoke for the border States. Michi- 
gan, in 1850, a strong commonwealth of fifteen 
years, took up the task of their solution in a series 
of debates that rank the Lansing convention among 
the great expository bodies which our country has 
produced. Michigan may be listened to as speak- 
ing for the North. The new West was heard in 
California, at Monterey, in 1849, when, for the first 
time, Americans of diverse political opinions — 

398 . 



California and Slaveocracy 

some from free soil and some from slave — united 
in making an organic law under the dominating 
guidance of economic necessity. 

In California, slaveocracy broke down. It could 
not administer the affairs of a commonwealth whose 
existence depended upon free labor, although a 
large portion of that commonwealth lay below the 
line of the Missouri Compromise. 

In selecting these States as typical of the North 
and the South, of the East and the West, each is 
left to tell its own story quite in the words in which 
it was first spoken, in order that the civil problems 
that confronted the country in 1850 may be un- 
derstood now, as they were then understood and 
solved.* 

* The constitutions adopted between 1800 and 1850 are ex- 
amined and discussed at length in Volume ii., Chapters xiii., 
xiv., xv. 



CHAPTER XIII 
DEMOCRACY IN A GULF STATE: 1845— LOUISIANA 

After years of agitation of the subject, and after 
expressing their will in large majorities at succes- 
sive elections, the people of Louisiana succeeded, 
in August, 1844, in entering upon a revision of 
their State government.* The convention assem- 
bled at Jackson on the 5th, adjourned to meet at 
New Orleans on the 20th, and, after a short inter- 
mission, resumed its session on the 14th of January, 
1845. Its work was not completed until the 16th 
of May, when the convention submitted a new con- 
stitution. It was ratified by popular vote on the 5th 
of November. The reforms demanded at the time 
of calling the convention may be said to be typical 
of demands then common over the country. The 
suffrage should be extended, representation equal- 
ized, and the appointive system for the judiciary 
give place to the elective. Outside of the original 

* The principal authorities for this chapter are, Proceedings 
and Debates of the Convention of Louisiana, R. J. Ker, reporter, 
146 -f- 962 pp., 8vo, New Orleans, 1845 I Journal de la Convention 
de la Louisiane, Nouvelle-Orleans, Imprime par J. Bayon, 3674- 
11 pp., 8vo, 1845 5 Rapports Officials des Debats de la Conven- 
tion de la Louisiane, James Foullonze, rapporteur, Imprimes par 
J. Bayon, Imprimeurde la Convention, 460 + 11 pp., 8vo, Nouvelle- 
Orleans, 1845. 

400 



Fight to Extend the Franchise 

States the judiciary had been seized by democracy 
and the elective system adopted. In common- 
wealths having large cities, the demand for the 
extension of the suffrage was strongest. But in 
some States, as in Rhode Island in 1842, a small 
and so - called Native - American party strongly 
opposed the extension, * and, for a time, success- 
fully. In Louisiana, conservatives, in and out of 
the convention, were now heard declaring their 
desire to extend " the inestimable privileges of the 
suffrage," but that it must be " protected and cor- 
rected by proper enactments, such as a registra- 
tion law, " to put a stop to fraud and corruption," 
and be guarded by strict regulations " to prevent 
bribery." Louisiana had a large alien-born popu- 
lation. The suffrage should be extended to all en- 
titled to citizenship, but should not include " birds 
of passage " — " the floating population," who could 
not be deeply interested and personally involved in 
the prosperity and government of the State. More 
liberal-minded delegates wished to receive " with 

* The struggle in Rhode Island culminated in "Dorr's Rebel- 
lion," and, after great agitation, in the extension of the suffrage. 
No episode in State history has been more prolific of contro- 
versial pamphlets. Of these there are nearly three hundred. 
The best account of the struggle, as an episode in civil polity, is 
given in the Interference of the Executive in the Affairs of Rhode 
Island, Report No. 546, House of Representatives, twenty-eighth 
Congress, first session, and in Luther vs. Borden, 7 Howard, 1. 
See the joint resolution of the Illinois Legislature, February 27, 
1845, declaring Dorr "a noble martyr in the cause of human 
liberty" , the joint resolutions of the New Hampshire Legislature, 
December 27, 1844, and July 2, 1845, blaming the Legislature of 
Rhode Island ; and the New Hampshire Legislature's resolution 
of July 2, 1847, investing Dorr with citizenship. 

I. — CC 401 



Constitutional History of the American People 

open hearts, and with generosity, all those who 
desired to cast their lot among the citizens of 
Louisiana." 

The Constitution of the United States leaves the 
definition of citizenship to the commonwealths. It 
should be made with discretion and without impos- 
ing the slightest obstacle, otherwise one class in 
the State would have advantage over another. Dis- 
tinction of privileges between free white citizens 
was anti-republican, illiberal, and unjust, and would 
be a source of perpetual struggle and discontent in 
any commonwealth. To New Orleans had come 
many thousands of foreigners who promoted public 
improvements, and in building up their own fort- 
unes had built up the fortunes of the city and 
contributed towards paying the debts of the State. 
Its indebtedness at this time amounted to four 
millions of dollars, its liabilities to fifteen. It was 
by the industry of these " birds of passage " that 
the commonwealth was to look for the cancella- 
tion of its obligations. To encourage the coming 
of foreigners was the principal assurance of the 
prosperity of the commonwealth. The problem 
before the convention was how to extend the suf- 
frage without endangering the interests of the 
State by including an undesirable class of voters. 
Universal suffrage was considered an unlimited 
mischief in Louisiana. It was necessary to iden- 
tify the electorate as the permanent, responsible 
population of the State. Foreigners, temporarily 
residing in the commonwealth, could have no 
identity of interest with it, as they were merely 

402 



Position of Foreigners in the Slave States 

there to subserve personal ends, which accom- 
plished, they would return whence they came. 

Distrust of foreigners, and a general unwilling- 
ness to extend to them the right of suffrage, were 
characteristics of slave- holding States long after 
such sentiments had ceased to influence the people 
of the free States. The relation between this senti- 
ment and the institution of slavery is not difficult 
to establish. Undoubtedly slavery compelled its 
advocates as far as possible to exclude from the 
commonwealth all who were not slave - owners. 
Consistency demanded this. Every white man not 
a slave-owner was necessarily a secret foe to the 
institution, as was proved when, in the final test, 
the limitations dictated by slavocracy were fully 
realized. Foreigners residing for a time in a slave- 
holding State were not likely to sympathize wholly 
with slavery. Many of them came from free States, 
many from countries in Europe in which African 
slavery was either unknown, or at least viewed with 
disfavor. Being chiefly concerned in commercial 
enterprises, they adapted themselves for gainful 
purposes to the industrial system in vogue, but 
utilized its resources chiefly for their own ag- 
grandizement. At least, they were considered as 
doing so by the native inhabitants of these com- 
monwealths. When, fifteen years later, the slave- 
holding States sought to secede from the Union, it 
will be seen that in their constitutional conventions 
they seriously debated the exclusion of foreigners.* 

* Read the speeches on "Citizenship" delivered in the Ala- 
bama Convention of 1861, reported in The History and Debates 

403 



Constitutional History of the American People 

The basis of their opposition to foreigners was 
rooted in the unnatural conditions of slavery it- 
self. The reasons for excluding the foreigner and 
the free person of color from the suffrage were 
quite the same. Neither was considered as per- 
manently identified with the essential interests of 
the State. The free person of color was a disturb- 
ing element in society ; the foreigner, a disturbing 
element in commerce. Slavery, for its own pro- 
tection, therefore, persistently sought to exclude 
both from the political community. They were 
residents in a slave - holding community only by 
sufferance. 

These selfish feelings long dictated the qualifi- 
cations for the suffrage. In the eighteenth century 
they prescribed what amount of property and 
what religious notions should be held by the voter 
in order to warrant the State in admitting him to 
participation in all its privileges. The causes 
which abolished property and religious qualifica- 
tions later effaced ideas long held in many States, 
by which foreigners and free persons of color 
were excluded from the electorate. At last, in 
1865, these same causes abolished slavery itself, 
since which time they have been operating to 
obliterate, as far as is racially possible, all distinc- 

of the Convention of the People of Alabama, Begun and Held in 
the City of Montgomery, on the Seventh Day of January, 1861 ; 
in which is preserved the speeches of the Secret Sessions, and 
many valuable State Papers. By William R. Smith, one of the 
Delegates from Tuscaloosa. Montgomery : White, Pfister & Co. 
Tuscaloosa : D. Woodruff. Atlanta : Wood, Honleiter, Rice & 
Co., 1861. 

404 



Representation on Federal Principles 

tions among the persons who organically compose 
the State. 

It was in Louisiana, in 1845, that the first ex- 
haustive debate occurred in a constitutional con- 
vention over the right and the expediency of bas- 
ing representation in the State on the federal 
number. The debate on this subject in Virginia,* 
in 1829, was earnest, but brief, and though it be- 
came the precedent for Louisiana, public opinion 
North and South had meanwhile greatly changed, 
and many influences not existing in 1829 were 
shaping the course of American politics. The 
Louisiana convention spent some time in fixing 
the election day, a matter which at first thought 
might seem to be of slight account. If the elec- 
tion was not in June or September, many of the 
most respectable citizens of the State would 
be practically disfranchised, for during the long, 
tropical summer they and their families sought a 
Northern clime. By the constitution of 181 2 the 
election of the General Assembly occurred on the 



* See Proceedings and Debates of the Virginia State Conven- 
tion of 1829-30. To which are subjoined the new Constitution 
of Virginia, and the Vote of the People. Richmond : Printed by- 
Samuel Shepherd & Co. for Ritchie & Cook, 1830. Also Jour- 
nals, Acts, and Proceedings of a General Convention of the Com- 
monwealth of Virginia, Assembled in Richmond on Monday, the 
Fifth Day of October, in the Year of Our Lord One Thousand 
Eight Hundred and Twenty-nine. Richmond : Printed by Thom- 
as Ritchie, 1829. James Monroe was president of this conven- 
tion, and among its members were James Madison, John Mar- 
shall, John Tyler, John Y. Mason, John Randolph, Philip P. 
Barbour, and Abel P. Upshur. Its debates were cited in South- 
ern conventions for the next twenty years. 

405 



Constitutional History of the American People 

first Monday in July, an inconvenient time, as ex- 
perience had shown. In 1812 it was common 
throughout the Union for an election to extend 
over one, two, or even three days. The roads 
were so bad in those days that it would have 
been impossible for the electors to convene in 
any one place on one day. So apparently slight 
a matter as a good road determines an important 
detail in the administration of government. As 
Rome conquered and governed the world for 
twelve centuries largely by means of a system of 
good roads connecting all parts of the empire 
with the capital, so in the United States the ad- 
ministration of government has improved as the 
roads of the country have improved ; and roads 
include not only canals, highways, and railroads, 
but also all practical means in the communication 
of ideas, such as the mails, signal systems, and 
telegraph and telephone lines. These economical 
aids to good government bring about an attach- 
ment between the elector and the interests of the 
State. It is in great measure due to mechanical 
aids of this nature that the qualifications of the 
voter have been simplified. Less time is required 
for him to gain a residence in a community, be- 
cause good roads now enable him to know its 
condition and its wants more intimately than the 
longest period of residence could give under the 
first State constitutions. There is some little 
reason why, in many commonwealths, a man, in 
order to vote, is required only to declare his in- 
tention of becoming a citizen. Together with the 

4.06 



No Absolute Sovereignty in the People 

advantages of transportation, he has the church, 
the school, and the press by which to inform 
himself of the wants of the community in which 
he resides. 

On the 21st of January, in the discussion of 
qualifications for the suffrage, a delegate expressed 
the idea that only residents of the State identified 
with its interests should be invested with the 
" vital prerogative of suffrage." The utmost lati- 
tude should be given to voters to select their Rep- 
resentatives. It was possible, but improbable, 
that they would abuse that freedom. " It was not 
likely they would elect a colored person or a 
woman to represent them." Five years was 
thought to be a suitable period for residence. 

Granted that sovereignty resides in the people, 
said another, has not the principle, when applied 
literally, proved to be impracticable ? A pure, un- 
mixed democracy is an absurdity, opposed to the 
very nature of man. Some restraint, for the pro- 
tection of the minority against the majority, is in- 
dispensable, otherwise government becomes a 
farce. The people are liable to be led astray. It 
is absurd to believe that any government can 
exist without restraint, reposing solely on the mo- 
mentary will of the people. True, we often hear 
that the Representative is the servant of the peo- 
ple ; but this is only a half-truth. The Representa- 
tive is equally their ruler. Therefore, restrictions 
of some kind are necessary. These, in our coun- 
try, take the form of electoral qualifications. As a 
lawyer accustomed only to practise under the 

407 



Constitutional History of the American People 

common law would be incapable of practising 
under the civil law without due preparation, so a 
citizen, unless duly prepared, is unable to perform 
the duties of an elector. 

But should not the qualifications of the Rep- 
resentative be the same as those of the voter ? 
Such a requirement would conform with the 
experience of many States, and was undoubtedly 
the true principle of representative government. 
Connecticut* and Virginia! were precedents. The 
requirement would prevent the establishment of a 
privileged class. Opinion had changed respecting 
the time required of the elector for residence. 
Fourteen of the States required but one year, 
and among these were the oldest as well as the 
youngest in the Union. Why should Louisiana 
adopt a principle different from that in other 
States ? Twenty-two of them required a residence 
of but two years for eligibility to the House of 
Representatives. The legislative department 
should be restrained quite as much as the elec- 
torate. 

One member defended the requirement for a 
five years' residence, because to intrust the admin- 
istration of the affairs of the State to strangers 
who knew nothing of its institutions, the peculiar 
feelings of its people, their manners and educa- 
tion, would endanger their interests. It would 
take at least this time for a person of ordinary 
intellect coming from a distant corner of the 

* 1818. 1 1829. 



Discrimination against Foreign-born Citizens 

Union to become familiar with the institutions, 
history, local affairs, and especially the peculiar 
system of laws of Louisiana. While not likely 
that strangers would be elected to the Legislat- 
ure, the possibility should be prevented. Indeed, 
should not all the public offices in the State be 
filled by her native sons ? They were identified 
with her by the strongest local attachment. It 
was not unreasonable to suppose that the colleges 
and schools of the State would soon send out 
young men capable of filling its highest offices. 
If there were any advantages in the public ser- 
vice, surely the natives of the State were entitled 
to them. Immigration to Louisiana was increas- 
ing. The State differed in this respect from Vir- 
ginia or Massachusetts.* 

This was essentially a repetition of the old 
argument that the population of the Northern 
States was homogeneous, and that of the Southern 
heterogeneous ; and therefore the constitutional 
provisions of Northern commonwealths could not 
be made precedents for the South — an argument of 
great practical effect as long as slavery continued. 

From these opinions some dissented. That the 
qualifications of members of the Legislature, and 
other public officers, ought to be identical with 

* Prior to 1850 no authentic data existed of the distribution 
and increase of the foreign population in the States. In that year 
1.62 of the population of Virginia, 13.18 of that of Louisiana, and 
16.49 of tnat °f Massachusetts were foreign -born. This tends 
to show that the statement by the member is incorrect. See 
Eleventh Census of the United States (1890); Population, Part i., 
p. lxxxiii. 

409 



Constitutional History of the American People 

those of voters was a novel idea. A few States 
had adopted it, but the great majority had followed 
a different principle. The Constitution of the 
United States was itself a precedent to the con- 
trary. A member of the House of Representa- 
tives must attain the age of twenty-five years. If 
the sovereign people were to select a man of the 
most distinguished talent — a political miracle, like 
Pitt, Jefferson, or Clay — he could not be eligible 
unless he was of this age and had been a citizen 
of the United States seven years. The qualifica- 
tions which entitled him to vote did not entitle 
him to a seat in Congress. For this reason he 
was required to be a citizen seven years and an 
inhabitant of the State for which he was chosen. 
Had not Franklin and Madison made this Con- 
stitution? Were the fathers of the Constitution 
in ignorance and darkness ? The constitutions of 
the States controverted the idea proposed. Maine 
required a residence of five years ; so, too, Massa- 
chusetts, and a freehold estate in addition; and 
New Hampshire, " a good Democratic State," re- 
quired a qualification of seven years' residence. 

A member at once corrected the reference to 
Maine, saying that to be a member of the House 
in that State, one must have been for five years a 
citizen of the United States, but a resident of the 
State only one — a correction typical of many that 
have to be made in the speeches of delegates. 
But in making a State constitution it is the argu- 
ment as presented that affects the convention, few 
of whose members are able to verify from their 

410 



The Magnetic Power of Rich Resources 

own knowledge all the references made to consti- 
tutional precedents. Error often works as effec- 
tively as truth in the process of State - making. 
The experience of Maine, Vermont, Ohio, Vir- 
ginia, and North Carolina invalidated the idea that 
the voter and the Representative should have the 
same qualifications. The typical member of a con- 
stitutional convention always considers his own 
State to be peculiarly situated. 

The greater part of the population of Louisiana 
was new. A tide of immigration was flowing into 
the city of New Orleans more rapidly than into 
any city of New Hampshire, Virginia, Rhode Isl- 
and, Maine, or Texas. The resources of the State 
invited foreigners. No obstacles should be thrown 
in their way, but the government of the State 
should not be intrusted to them. Identity of in- 
terest between them and the institutions of the 
commonwealth should be secured. The property 
qualification had been struck out as useless in se- 
curing fidelity in the exercise of the suffrage, on 
the ground that identity of pecuniary interests is 
an obsolete notion. It followed that there re- 
mained no guarantee derived from the possession 
of property, and that the man without property 
who came from a State hostile to Louisiana might 
participate in its government. The only remain- 
ing guarantees were attachment and sympathy, and 
these are secured only by residence. Was it pos- 
sible for a man who had passed his youth in Massa- 
chusetts, Virginia, or Rhode Island to divest him- 
self of his former attachment to the particular in- 

411 



Constitutional History of the American People 

stitutions with which he was familiar, and, in the 
short period of six months, forget the influence 
of his education and his prejudices ? Could an 
inhabitant of Massachusetts who removed to Lou- 
isiana regard slavery in its true light ? Would he 
sympathize with the perfect tolerance of religions, 
so remarkable in Louisiana, which was not the 
result of law, but of public opinion ? It must be 
presumed that the attachments which he had 
formed in his former home would preclude him 
from imbibing at once a relish for Louisiana in- 
stitutions. If he resided there for years he might 
at last acquire it and lose his original prejudices. 

The reference to a property qualification caused 
a delegate to cite a case in the House of Repre- 
sentatives, when he was a member, as proof that 
the qualification was not only odious to the people 
of the State, but was disregarded by them. The 
seat of a member had been contested on the ground 
that he did not possess the property qualification — 
landed estate to the value of five hundred dollars 
— as required by the constitution of 1812. But the 
committee on elections, though knowing the facts, 
would not take notice of them, neither would the 
House. The futility of insisting on the qualifica- 
tion of age as an essential matter was proved in 
the case of Henry Clay and John Randolph, each 
of whom was elected to the Congress of the United 
States before he was twenty- five. Randolph set- 
tled his case by his reply to the inquiry as to his 
age: "Go and ask my constituents." When the 
constitution of 18 1 2 was adopted, Louisiana had not 

412 



Residential Qualification for Office in Louisiana 

long emerged from Spanish and French dominion. 
It was then supposed that some unkind feelings 
existed among classes of the community. Since 
that time the population have become a united 
people ; nor was there any danger of electing a 
Representative who was not entirely identified 
with the interests of the State by residence. Elec- 
tion was evidence of popularity and public confi- 
dence. There was no likelihood that any Aboli- 
tionist would be chosen. None would sink into 
the affections of the people, for none could con- 
ceal his views. Suppose that any one of the dis- 
tinguished men of the country — Calhoun, Tyler, 
or Silas Wright — were to remove to Louisiana, who 
would object that he be elevated to the Legislat- 
ure of the State? By a vote of thirty -four to 
thirty -one, the residence was fixed at four years, 
and, by a vote of thirty-nine to thirty-two, the time 
of residence of the naturalized citizen was to be 
computed from the date of his certificate. One 
member, though favoring the extension of the suf- 
frage, did not favor the Utopian idea that there 
should be no restriction as to sex and color. But 
before this was discussed several members ex- 
pressed their ideas of the respective rights of na- 
tive and naturalized citizens. 

One wished an equality between them. If, from 
reasons of sound policy, native-born citizens from 
other States were required to remain in Louisi- 
ana five years before they could be eligible to pub- 
lic office, at least the same restriction ought to be 
prescribed for naturalized foreigners. A native 

413 



Constitutional History of the American People 

citizen is always subject to the laws of the country, 
and is obliged to bear his share of the public bur- 
dens. Not so the foreigner. He may exempt him- 
self from the laws and remain under those of his 
own country. In the mean time he might make 
his declaration of becoming a citizen, and having 
at his convenience gone through all the forms of 
naturalization, at once become eligible to office. 
Meanwhile a citizen of Mississippi coming to 
Louisiana was compelled to work on the public 
roads and perform similar duties during the time 
he was acquiring a lawful residence. A foreigner 
who had first arrived in another State and was 
naturalized there, was placed from the date of his 
naturalization on an equality with the native-born 
citizen of that State. Was it not unjust that citi- 
zens of other States must be disfranchised two 
years because they chose to emigrate to Louisi- 
ana? The State had become rich and powerful 
because of immigration. For a long time its prop- 
erty qualifications retarded its progress, and Ala- 
bama, Mississippi, Ohio, Indiana, and Illinois — ad- 
mitted long after Louisiana — had far outstripped 
it in the race of prosperity and population. The 
constitution of 1812, and the laws made under it, if 
not the sole cause of this result, had certainly not 
been as conducive to progress as the soil, the cli- 
mate, and the commercial advantages of its great 
city. Moreover, there was reason for the pro- 
posed restriction. Men will not take residence in 
a State whose laws are an invidious distinction 
against their own interests. Immigrants would 

414 



The Universality of Citizenship 

prefer Texas to Louisiana. For thirty years, under 
the old constitution, the people of Louisiana had 
admitted citizens from any State to all the rights 
of freemen after a residence of twelve months. 
The Constitution of the United States, in pre- 
scribing that the citizens of each State should 
have all the rights, privileges, and advantages of 
citizens of the other States, indicated the princi- 
ple which Louisiana ought to follow. 

The government of the United States was a 
government of one country, and therefore every 
citizen of the State should feel as much at home 
in one State as another. The principle of requir- 
ing long residence was erroneous, for it was found- 
ed on an idea of exclusion, contrary to the general 
welfare. Whenever a man proved by sufficient 
residence that he was identified with the interests 
of a State, there was no reason why he should be 
denied the rights of citizenship. Louisiana should 
accord them to such a citizen because every other 
State in the Union accorded them to the citizen 
of Louisiana after a similar residence. Of the 
Southern States, South Carolina required, in ad- 
dition to the residence of two years, a freehold 
estate of fifty acres of land, and the payment of 
a tax equal to three shillings sterling. Some 
States required a residence of but three months. 
A man should not be deprived of political rights 
simply because he moved to Louisiana. He had 
been a citizen of an equal State, and perhaps was 
the descendant of one who, in the field or the 
Senate, had done much for his country. He was 

415 



Constitutional History of the American Teople 

accustomed from infancy to love the whole coun- 
try and its institutions, and was now interested to 
concentrate that affection on Louisiana, simply be- 
cause he had located there. His attachment to 
the whole country being as great as any man's, 
was he less capable of performing the duties of 
citizenship than one who had long resided in Lou- 
isiana? His conduct depended upon his education, 
but the means of education in other States were 
equal to those in Louisiana. 

The extremely fertile lands and genial climate 
of Louisiana attracted rich planters from Missis- 
sippi, Alabama, and the Carolinas, with their fam- 
ilies and their slaves. There were many such in 
the northwestern portions of the State ; many 
more would come and avail themselves of these 
advantages, if the constitution and laws of the 
State invited them. The greater number came 
without means, but with moral and intellectual 
capital to use for the welfare of the State. They 
were a most valuable acquisition. The agriculture 
of the State was in its infancy; the sugar and cotton 
lands were far from being all occupied. Compared 
with the vast resources of the State, its production 
of provisions was slight. Its soil and climate were 
adapted to the production of many articles which 
had not yet received attention — such as fruits, silk, 
wine, and oil. The State had scarcely yet made a 
beginning in manufactures. Soon its commerce 
must be the first in the Union, but it was now 
carried on almost exclusively by the citizens of 
other States. Population should be courted, not 

416 



The Commercial Importance of New Orleans 

restricted by constitutional provisions. If the rich 
immigrated with their slaves, and settled and im- 
proved the lands of the commonwealth, sound 
political principle required that they should have 
a voice in selecting the officers of government 
whose action was to regulate their property. 

New Orleans was the great point of connection 
with North America, Europe, and the Southern 
islands. It was true statesmanship, therefore, to 
further, by every possible means, the prosperity 
marked out by the opportunities of this commer- 
cial centre. But some of the members had sug- 
gested that two years' residence should be re- 
quired as a guarantee against the Abolitionism 
with which new-comers might be imbued. A year 
was time enough to enable a man's neighbor to 
change his views on this subject, and to guard 
against them if they were dangerous to the State. 
It was sufficient to enable the new-comer to see 
that the well-regulated system of slavery in Louisi- 
ana was indispensable to the slave-owners, to the 
slaves, and to the prosperity of the State. Every 
man capable of taking a correct view of civil soci- 
ety would wish to see a million instead of three 
hundred thousand black slaves in the State. If 
any considerable portion of the population was de- 
prived of its political rights, it would be degraded 
to the condition of the slave, and the evil of sla- 
very would be made dangerous by exciting against 
it the sympathy of a portion of the whites. If every 
freeman in the State was elevated to an equal par- 
ticipation in its government, and a broad political 

I. — DD 417 



Constitutional History of the American "People 

distinction was made between him and the slave, 
"from the united souls of freedom a wall of fire 
would be kindled around the State and its insti- 
tutions against the diabolical machinations of Abo- 
litionism." 

Before debating the compromise, that the resi- 
dence of the naturalized citizen should date from 
the time of receiving his naturalization certificate, 
whether in Louisiana or elsewhere, which practi- 
cally placed him upon an equality with the native- 
born citizen, several members expressed an idea 
common to constitutional conventions, that the 
State was the sole judge of whom it should re- 
ceive and whom it should reject. This right of 
final decision was incident to the nature of an 
American commonwealth, whose people in con- 
vention assembled, possessing accurate knowledge 
of the institutions of the State, should define 
the qualifications of all who sought identification 
with them. It is upon this notion that the idea 
of State sovereignty rests, and upon which the 
decisions of State and national courts have rested 
in its support. 

This long discussion of the proposed admis- 
sion of foreigners to the rights of citizenship was 
only a review of American history. One mem- 
ber interpreted the relations between Louisiana 
and the United States to preclude the State from 
imposing invidious distinctions upon the citizens 
of the several States. A citizen of Louisiana was 
entitled to all privileges of citizenship whether he 
was naturalized or native - born. A State had no 

418 



Citizens Without Naturalisation 

more control over citizenship than over the na- 
tional prerogative to coin money. It could not 
impose discriminating disabilities upon natural- 
ized citizens. If a citizen of Mississippi was eli- 
gible to all the privileges of citizens of Louisi- 
ana, according to the federal Constitution, how 
could the convention impose disabilities ? At 
the time when Mississippi was admitted to the 
Union, one of its citizens, who had never gone 
through the usual process of naturalization, was 
elected to the Legislature from the district to 
which he had removed, and the question arose 
whether he was a citizen of the United States and 
eligible to the office. The State Senate decided 
in his favor; the court sustained the Senate, and 
also decided that all the inhabitants of the Missis- 
sippi Territory at the time of its admission into 
the Union became, ipso facto, citizens of the United 
States. To discriminate against naturalized per- 
sons was contrary to the decision of the federal 
court* This and other decisions fixed the princi- 
ple that a State cannot impose greater restrictions 
in admitting foreigners to naturalization than are 
imposed under the act of Congress. A State may 
require qualifications, and some new States had 
availed themselves of that construction by admit- 
ting foreigners to citizenship upon easier terms. 

The dogma of Native - Americanism was not 
new. It came from an objectionable source, as- 
sociated in the opinion of the people of Louisiana 

* Collett vs. Collett, 8 Dallas, 294. 
419 



Constitutional History of the American People 

with everything vile and degrading in politics. It 
had made its first appearance in the days of Feder- 
alism, and had produced the infamous Alien and 
Sedition laws. Conscious of weakness, the old 
Federal party enacted these laws to save itself 
from overthrow. They were passed for the pur- 
pose of engendering prejudice and creating ani- 
mosities. They became a leading question before 
the country, and a distinguished statesman of 
Democratic principles, of whom Louisiana would 
ever be proud, was conspicuous in the struggle. 
Perhaps of all his productions his arguments 
against these laws were the best. Livingston was 
at that time a member of Congress from the State 
of New York. His arguments against these laws 
were admirable and conclusive, and the State of 
Louisiana should obtain a copy, have it elegantly 
bound, and deposited in its archives in honor of its 
great author. The opposition to these laws was 
the rallying point of the Democratic party. In 
the Legislature of Kentucky prompt and decisive 
action was taken, and in the Legislature of Virginia 
resolutions now famous were introduced. As 
soon as the Democratic party came into power the 
laws were repealed and the persons confined under 
their authority set at liberty. 

The principle then repudiated had been revived 
later, with all its narrow and contracting prejudices, 
in Native - Americanism. No man — certainly no 
Democrat — could give support to that idea. Again, 
the principles of the Alien and Sedition laws were 
proclaimed during the administration of Madi- 

420 



Native- Americanism, in the Hartford Convention 

son. At a critical period a convention was held in 
a little village in New England, and it has given 
immortality to the place. Hartford otherwise 
would have never been heard of. At this meet- 
ing of traitors this very question of Native-Ameri- 
canism was revived and brought conspicuously to 
light, in vital and abiding antagonism to the South, 
in the form of a proposition to exclude the repre- 
sentation of slaves, and Massachusetts still held to 
the idea. 

The Louisiana convention was in session dur- 
ing the height of the excitement over the " re- 
annexation " of Texas, and this national issue was 
not overlooked in the debates. Native-American- 
ism was associated in men's minds with opposi- 
tion to annexation, and a member read an extract 
from the Southern Quarterly Review, to which he 
said the author's name was not given, " but from 
the great ability with which the article was written 
he presumed it was from the pen of a distin- 
guished gentleman, Professor Everett."* The 
article discussed annexation, and declared that it 
would produce dissension. In like spirit, the 
Hartford convention had declared that slave repre- 
sentation would produce dissension. It had pro- 
posed amendments to the Constitution — such as 
restricting Congress from admitting new States 
without the consent of two -thirds of the exist- 
ing States ; the withdrawal of the representa- 

* Southern Quarterly Review, October, 1844, Art. ix., "The 
Annexation of Texas," pp. 483-520. There is no evidence in the 
article that Everett was its author. 

421 



Constitutional History of the American People 

tion allowed to the slave - holding States based 
upon the slave population ; the exclusion of aliens 
from office and from the privileges of citizenship, 
except after a residence of twenty-one years ; one 
term for the President, and that the office should 
not be filled twice from the same State. These 
were proposed by the Legislature of Connecticut 
to the other States of the Union, but met with 
no favor.* Was not this extract in the spirit 
of the Alien and Sedition laws? Did it not re- 
vive and blend new elements of political strife 
and endanger the peace and safety of the Union? 
It had met with no favor in 1814; it would meet 
with no favor in 1845. ^ n these doctrines there 
was a design to revolutionize the whole country 
and light the torch of civil war. It was the Hart- 
ford convention, sanctioning the federal doctrines 
of 1797, and again proclaiming federal principles, 
which, when originally brought out, proved so dis- 
astrous to the party that espoused them. These 
were the principles which had given rise to the 
Native - American party — the old Federal party 
under a new guise. Defeated in 1800, and meet- 
ing with a succession of disasters, the Federal 
party then revived the doctrines of 1797, and made 
war upon our institutions. The doctrines of 

* See the Proceedings of a Convention of Delegates from the 
States of Massachusetts, Connecticut, and Rhode Island ; the 
Counties of Cheshire and Grafton, in the State of New Hamp- 
shire ; and the County of Windham, in the State of Vermont ; 
Convened at Hartford, in the State of Connecticut, December 
15, 1814. Third Edition. Corrected and Improved. Boston: 
Printed and Published by Wells & Lilly. 1815. 32 pp. 

422 



Liberal Principles of Our Early Statesmen 

the Native - American party were older than the 
federal Constitution. The Madison papers showed 
that this policy, to exclude persons of foreign birth 
from participating in the government of the coun- 
try, was broached and insisted upon in the Phila- 
delphia convention of 1787.* Washington, Madi- 
son, Franklin, and Wilson held liberal opinions, 
and were opposed to restrictions that would ex- 
clude their fellow-men from citizenship. 

The opinions of Franklin, in particular, were 
practical, " because that distinguished man had 
spent a considerable time in Europe and had 
the opportunity of forming a correct judgment" 
During a period of over sixty years, although 
several States had formed and modified their 
system of government, not one had incorporated 
the principle of placing the naturalized citizen 
in a position inferior to that of the native-born. 
With the exception of Georgia and Maine, not a 
State had adopted this illiberal distinction. The 
constitution of Georgia of 1798 had special refer- 
ence to the peculiar geographical position of that 
State, being then contiguous to the dominions of 
Spain. But it did not contain a Native - Ameri- 
can clause. The Maine convention had not dis- 
cussed the proposition, but required the Governor 
to be a native-born citizen of the United States. 
The weight of authority in America was against 
the incorporation of a Native-American clause in 
a State constitution. It was the intention of the 

* Elliot, Vol. v., pp. 120, 143, 378, 398, 411, 560. 

423 



Constitutional History of the American People 

federal Constitution that the States should impose 
no greater restrictions than were imposed by the 
laws of Congress. All the eminent men of the 
formative period of American history were op- 
posed to the spirit of Native - Americanism. Of 
these the most illustrious were Wilson and Madi- 
son. Conceding that " the services of Madison 
were most eminent, next to him no one had im- 
pressed a stronger mark of his mind upon the 
Constitution than Wilson,"* a foreigner by birth, 
whose very name was an illustrious refutation of 
the fallacy of the doctrine. Nor were all the 
members of the Whig party blind to the folly of 
the crusade against naturalized citizens.! 

Like the constitution of Massachusetts of 1780, 
that of Louisiana in 181 2 required of the Govern- 
or a property qualification, in the form of landed 
estate of the value of five thousand dollars. The 
unpopularity of this qualification was illustrated 
in the election of Governor Mouton, in 1844, who 

* This is one of the earliest tributes to this eminent jurist. 

f At this point in the discussion a member of the conven- 
tion read an extract from the Louisville Weekly Journal, whose 
editor, he said, was a distinguished writer and a personal and 
political friend of the late Whig candidate for the Presidency, 
and yet he pronounced himself decidedly against the movement 
of his party to organize under a new name and upon the principle 
of hostility to foreigners. The article was written immediately 
after the defeat of Clay, and might be considered a sort of fu- 
neral oration or explanation of the cause which prevented the 
Whigs from making a better fight. Another extract, from the 
New York Tribune, to the same effect, was read, and the member 
concluded his appeal for the equal rights of the native and the 
naturalized citizens of the country by citing the distinguished 
services of foreigners in the war for American independence. 

424 



Slavery Permeating the Whole Political Body 

was inaugurated without inquiry as to his property. 
Even if he had lacked the qualification, his popu- 
larity would have insured his election. In like 
manner, and agreeable to public opinion, the relig- 
ious and property qualifications for voters and 
office-holders disappeared in practice before they 
vanished from the State constitutions. 

It was impossible to discuss any phase of the fran- 
chise without involving the institution of slavery,' 
and Judah P. Benjamin, a member from Orleans, 
afterwards foremost in secession and in the forma- 
tion of the Southern Confederacy, now warned his 
colleagues that they ought not to wrangle over 
distinctions between the rights of naturalized and 
native-born citizens, for a subject of vital impor- 
tance, which ought to produce unanimity in their 
councils, demanded their attention, one that would 
obliterate all distinctions between Whigs and 
Democrats, and cause the whole South to form a 
single political party. The signs of the times 
plainly indicated that the peculiar institution of 
the slave-holding States must be guarded from an 
insidious foe — the Abolitionist. The course of 
events was proving that the Southern States 
must maintain their rights, rely upon themselves, 
and not upon the stipulations in the federal com- 
pact. 

On Friday, the 24th, the right to vote was limit- 
ed to free white male citizens of the United States. 
In the slave -holding States the tendency was to 
require a longer residence than was customary in 
the free States. The whole attitude of slave-hold- 

425 



Constitutional History of the American People 

ing communities was essentially unfriendly to new- 
comers.* These commonwealths wished to be ex- 
clusive, and their exclusiveness bred a political 
conceit which the course of politics and industry 
in America did not warrant. In this respect 
the restrictions on the suffrage, which for a long 
time were in force in slave-holding communities, 
continued the prejudices of colonial times. The 
high wall of political exclusiveness thus erected 
around the slave-holding commonwealths practi- 
cally deprived them of the energizing population 
which was pouring into the free States. In no 
part of the world was there ever a more ardent de- 
fence of the doctrine of political equality among 
men than that heard from time to time in con- 
stitutional conventions of the slave-holding States. 
But in none did equality include any but the white, 
the dominant race. In Northern conventions there 
was less said of the necessity for long residence in 
order to enable the new-comer to become familiar 
with the essential interests of the State. The 
homogeneous population of the North practically 
permitted a shorter residence for the voter, while 
the heterogeneous population of the South, as its 
needs were interpreted by Southern statesmen, 

* See the speeches on citizenship and immigration in The His- 
tory and Debates of the Convention of the People of Alabama, 
Begun and Held in the City of Montgomery on the Seventh Day 
of January, 1861 ; in which is preserved the Speeches of the Se- 
cret Sessions, and many valuable Papers. By William Smith, 
one of the Delegates from Tuscaloosa. Montgomery: White, 
Pfister & Co. Tuscaloosa: D.Woodruff. Atlanta: Wood, Hon- 
leiter, Rice & Co. 1861. 

426 



Cosmopolitan Characteristics of Louisiana 

made a longer period necessary. Thus, directly 
and indirectly, slavery excluded immigration, and 
had the domestic effect of emphasizing in an 
undue degree the importance of the peculiar insti- 
tution.* 

In Louisiana political exclusiveness was less in- 
tense than in any other slave - holding common- 
wealth, because it was in part obliterated by the 
cosmopolitan character of the State. Its population 
sprang from different races — the African, the Span- 
ish, the French, the English, the American. New 
Orleans was the commercial capital of the South. 
Therefore, in determining the time required for 
gaining a residence in the State, this cosmopolitan 
character of its population was a determining factor. 
The discussion of this qualification was not wide- 
ly different from that in the Northwestern States 
in a similar economic situation. The State stood 
in need of population ; it had immense resources, 
which could be fully developed only by a great 
number of people. Therefore, it ought to encour- 
age immigration. Discouraged immigrants would 
go elsewhere — to Arkansas or Texas. If a liberal 
policy was pursued those possessing ability and 
industry would come to the State, and it would 
then grow greater every day in wealth and impor- 
tance. Its commercial domain would then extend 
from the Alleghany Mountains to the Gulf of Mex- 
ico, from the Gulf to the remote parts of the earth. 
If freely encouraged to locate in Louisiana, immi- 

* See Calhoun's letter to King, August 12, 1844. 
427 



Constitutional History of the American People 

grants would there become rich and prosperous, 
and in times of danger strengthen the State.* 

These liberal notions, however, were highly ob- 
jectionable to many who wished the control of the 
State to be wholly in the hands of its native-born 
population and its oldest and richest families. As 
the debate proceeded, the constitutions of other 
States were freely quoted, particularly those of 
Iowa,t Alabama,^ Michigan, § Illinois, || and Ar- 
kansas,^ whose provisions defining the elective 
franchise were regarded as expressing the liberal 
spirit of the American people. One member, in 
referring to these, said that he did not attach much 
authority to the eighteenth-century constitutions of 
the confederacy. They had been framed at a pe- 
riod when man's capacity for self-government was 
an unsolved problem, when our ablest statesmen 
w r ere doubtful of the result of our great political 
experiment. Among those, however, there was 
one illustrious exception, " a man whose intellect 
towered above the age in which he lived, and min- 
gled with the events of the coming generation." 
Jefferson, earlier than any of his contemporaries, 
had seen the successful issue of our republican in- 
stitutions, and in his philosophical writings on gov- 
ernment had left a priceless heritage to the young- 
er statesmen of America. The doctrines of an 
exclusive suffrage had long been exploded. They 

* These ideas are almost identical with those expressed in 
Illinois, Iowa, Michigan, and Wisconsin in 1845-50. See the 
constitutional conventions of these States during these years. 

t 1846. I 1819. § 1837. I 1818. IT 1836. 

428 



The Teachings of Franklin Predominate 

were not Jeffersonian in their character. In proof 
of this, eight States required less than one years 
residence; seventeen, a residence of one year; and 
but one State, South Carolina, a residence of two 
years — and the constitution of South Carolina was 
framed in 1 790.* Some thought because the prop- 
erty qualification was to be stricken out that some 
equivalent restriction should be adopted. The 
people demanded the abandonment of such a re- 
striction, and believed in the logic and philosophy 
of Franklin — that if property is made the basis of 
the suffrage, then property, not man, votes. Gov- 
ernment would then be determined by " the inert 
mass of unthinking matter which exercises politi- 
cal influence." 

Had not the folly of depending upon a long 
residence for securing a conserving electorate been 
proved in Louisiana at the time of the battle of 
New Orleans? Nearly nine-tenths of the Orleans 
battalion were not voters, under the restrictive 
clause of the constitution of i8i2.t The soldiers 
who had driven back the British army were not 
electors ; and it was folly to suppose that the State 
would be adequately defended merely by prescrib- 
ing a long period in which its inhabitants might 
gain a residence. 

There was another reason why the franchise 
should be liberal. The more restricted a govern- 
ment, the more is political power confined in the 

* For the provisions in the State constitutions of 1776-1800, 
see Chaps, ii., iii. ; for those of 1 800-1 850, see Vol. ii., Chap. xv. 
t See p. 395 as to regiments of free persons of color. 

429 



Constitutional History of the American People 

hands of the few. Confined to only a few, the ex- 
pense would be large ; but if this power was con- 
fined to one -fifteenth, or in the hands, say, of a 
dozen men, it would be found that these would 
secure enormous salaries, and patronage would be 
appropriated so as to perpetuate power. In Eng- 
land, by the right of primogeniture, political power 
was retained in the hands of the few. Public func- 
tionaries there received large salaries. Much mon- 
ey was spent to keep up the state of the bishops. 
The national debt was increasing. In a govern- 
ment of property-holders, as in England, property 
was the chief object of protection. Although the 
country was under as thorough cultivation as a 
garden, its resources were monopolized by the few, 
while the many were without the necessaries of 
life. If protection to property were the measure 
of government, despotic governments were fre- 
quently to be commended, but in time of war the 
freeholders were not sufficient in number to pro- 
tect all the interests of the State. 






CHAPTER XIV 
THE BASIS OF REPRESENTATION 

In Louisiana the laboring classes formed the 
greater part of the militia. Though they performed 
all the services of the citizen, they were denied a 
voice at the polls. From the poorer classes no 
danger was to be apprehended ; they had always 
been the protectors of property; they demanded 
but a fair participation in the privileges of citizen- 
ship. Property is power. It always exercises a 
sufficient control over the poor; therefore, it was 
unnecessary to deny them a voice in the adminis- 
tration because of their poverty. It would place 
the poorer whites on an equality with slaves. 

The Virginia convention of 1829, though con- 
sisting of men as talented as any who had assem- 
bled since the formation of the federal Constitu- 
tion, were afraid of making popular reforms. They 
were so wedded to aristocracy that they made as 
few modifications as possible. Indeed, their con- 
servatism was comportable only with the conserva- 
tism of Governor Berkeley, who, in the earlier part 
of the colonial history of Virginia, in speaking of 
the New England States, and of the desire of their 
people for public education, had thanked God that 
there were neither free schools nor printing- 

431 



Constitutional History of the American People 

presses within his colony, as learning created dis- 
satisfaction and disputes, which the printing-press 
promulgated. Governor Berkeley was not the last 
of the conservatives. The deference to property 
had been illustrated in the Massachusetts conven- 
tion of 1820, and in the New York convention of 
the following year.* Even Madison had changed 
his earlier views. In the federal convention of 
1787 he had said that "persons and property be- 
ing both essential objects of government, the most 
that either can claim is such a stricture as will 
have a reasonable security for the other." 

In the Virginia convention, twenty- two years 
later, he said that " It cannot be expedient to raise 
a republican government if a portion of society 
having a numerical and physical force be excluded 
from and likely to be turned against it, and which 
would lead to a standing military force dangerous to 
all parties and to liberty itself." Property is sufficient 
for its own protection. An extension of the suf- 
frage would be followed by a reduction of public 
salaries. If a property qualification were required, 
it must be graduated. If a man possessed of ten 
thousand dollars was more interested in the defence 
of the State than one who has not a dollar, then he 
who owned fifty thousand dollars must be propor- 
tionally interested. If a man with fifty negroes 
had one vote, then he who owned a hundred ought 
to have two. 

* See the debates in these two conventions for an exhaustive 
discussion of the idea, expressed in the Massachusetts convention 
by Webster, "The basis of government is property." 

43 2 



Property Qualification Detrimental to the State 

The value of the constitutions of other States in 
the Union as evidence that property would be un- 
safe if it were not made an element in representa- 
tion, and that those who possessed no property 
would be dangerous legislators, was deprecated by 
some. It was more appropriate to refer to the 
contrary experience of Louisiana. There property 
had governed exclusively. The State had become 
involved in heavy debts. The extravagant appro- 
priations made by the Legislature had not been 
for the benefit of the poor, but of the rich. The 
experience of Louisiana attested the extravagance 
and follies which followed the administration of a 
government founded on the property basis. 

The ultra- conservative element in the conven- 
tion was in the minority. The majority of its mem- 
bers favored an extension of the suffrage. But to 
what degree ? Would not a law for the registra- 
tion of voters prevent the election frauds for which 
the State of Louisiana was noted, due to the great 
number of persons who came to the State from 
other commonwealths and from Europe ? Some 
wished the rights of the elector unimpaired so 
long as he continued to be a house-keeper in the 
State and his dwelling-house was actually occupied 
by a member of his family during his absence. 

The discussion of the franchise led almost im- 
perceptibly to a discussion of representation. It 
should be uniform ; but upon what basis ? A del- 
egate from Orleans began the debate for which, 
among constitutional conventions, this one is dis- 
tinguished. Property should be the basis of rep- 
L— ee 433 



Constitutional History of the American People 

resentation; but the convention had rejected this 
basis. Next to property, the best basis was the 
qualified voter. There had been some unwilling- 
ness to adopt the basis of manhood suffrage. If 
neither property nor manhood suffrage was to be 
the basis adopted, it should be the free white popu- 
lation of the State. The committee on the fran- 
chise had reported in favor of the federal basis. 
This was arbitrary, and, if established, tended to 
keep up dissensions in the State. It was well 
known, as was said in the Virginia convention of 
1830, that the "federal basis was a departure from 
principle, insisted on by the Southern States as a 
guarantee, and consented to by the Northern States 
only as a compromise, without which the union of 
the States had been impossible. Its design was to 
preserve the balance of power and to protect the 
Southern States from encroachments by the North- 
ern States." The local situation of the people of 
Louisiana made it unnecessary to adopt that basis, 
as slave-holders comprised the greater part of the 
white population. It had been said that if this basis 
was rejected, Louisiana would repudiate its essen- 
tial institutions. But there was no analogy between 
the basis of representation in a commonwealth and 
in the United States. In a commonwealth where 
all submitted to the same laws, enjoyed the same 
franchise, held the same kind of property, it was 
idle to adopt an arbitrary system of apportionment, 
which was not only manifestly unjust, but repug- 
nant to the social system of the State. Granted 
that the federal basis was proper for the Union, 

434 



The South and Its Heterogeneous Population 

there was a peculiar impropriety in its adoption in 
the State, for it would expose slavery to the very 
risk to guard against which this basis had been 
insisted upon as essential at the time of the forma- 
tion of the federal compact. In its local relations 
a State could find no necessity for adopting it. 
Practically, its adoption would result in great in- 
justice. It would give to a few districts a dispro- 
portional representation, and enable them to con- 
trol the whole Assembly. The western portion of 
the State was the richest in agricultural resources; 
it was fast increasing in slave population, and con- 
sequently its white population was proportionally 
small. Not a planter removed thither who did not 
carry with him from fifteen to twenty slaves, which 
was the average ownership in that part of the 
State. The comparative increase of white and 
slave population there was as one to seven ; in 
Southern Louisiana the slave population was de- 
creasing, especially in the city of New Orleans, 
where, in a population of one hundred and ten 
thousand whites, there were but eighteen thousand 
slaves, making a proportion of six whites to one 
slave. From the city of New Orleans to Baton 
Rouge the increase of the laboring white popula- 
tion was great, which accounted for the decrease 
in the number of slaves in that region, and their 
removal to the western portion of the State, or 
wherever their labor was more productive. If one 
of the new parishes in Western Louisiana, with an 
area of thirty to fifty square miles, was made a rep- 
resentative district, and to its white population 

435 



Constitutional History of the American People 

three-fifths of its slaves were added, it was certain 
that, as compared with one of the river parishes in 
southern Louisiana, whose white population was 
in the ratio of two to one of its slave population, 
the southern district would have less political 
power than the western, having a ratio of fifteen 
slaves to one white man. A more arbitrary system 
of representation could not be devised to transfer 
the political power of the State into the hands of 
a few persons residing in favored regions of the 
State. 

Furthermore, if each district was to have one 
Representative, there would be a constant en- 
couragement to create new districts. In the older 
portions of the State land was less productive 
and the people less able to incur heavy expenses 
by the formation of new districts. In the west- 
ern part land was of extraordinary fertility ; the 
population there could easily subdivide into new 
districts and bear the burdens of separate, paro- 
chial organization. The more numerous popula- 
tion in the east would be overbalanced by the 
number of parishes in the west. Political power 
would reside in that portion of the State which 
had been subdivided into many parishes expressly 
to produce preponderance. Why should slaves 
be represented and other property excluded ? If 
slaves, as property, were to be represented, why not 
include houses and land ? If the owner of a slave 
was to be invested with greater political power 
by reason of that possession, why should not a 
capitalist enjoy the extension of political power 

43 6 



Where the Federal Number Failed 

through the representation of his capital? All 
property should be treated alike. 

It seems strange, perhaps, that the defenders of 
slavery should have admitted that the slavery 
compromise of the national Constitution was a 
departure from principle. It might seem that 
they would have claimed it as an illustration of 
the true principle of representative government. 
Because the federal basis, when men sought to 
apply it to the apportionment of representation in 
a commonwealth, proved unmanageable, it was 
said to be a departure from principle. Why, in- 
quired a delegate, should but three-fifths of slave 
property, instead of two-fifths or one-half or the 
whole number, constitute the basis ? Any basis 
fixed by an arbitrary principle was revolting to 
the sense of justice. It was with bad grace, in- 
deed, that those who declaimed in favor of the in- 
estimable right of suffrage for every white male 
should propose a basis that admitted three-fifths 
of the slave population, and put them on an equal 
footing with the white population, and by so much 
reduced the political power of the individual elec- 
tors. 

As the debate proceeded it was discovered that 
the contending powers in the convention were 
the country against the town — as in Virginia in 
1830, the highlands against the lowlands. If the 
white basis were adopted, the advantage would lie 
with the towns ; if the slave basis, with the coun- 
try. It was declared that the adoption of the 
white basis involved the existence of the agricult- 

437 



Constitutional History of the American Teople 

ural interests of the State. It was a basis proper 
enough for a community whose institutions were 
dissimilar to those of Louisiana ; but imperious 
necessity there demanded that slave property, 
from which the greatest amount of revenue was 
derived, and which was the source of the agricult- 
ural wealth of the State, should be considered a 
part of the basis of representation. Because of 
the existence of that species of property, and its 
function in agriculture, the white population of 
the country was comparatively less than the white 
population of the city; but the population of the 
country was permanent, and essentially attached 
to the soil and the institutions of the State. 
The city population was floating. The greatest 
interest of the State, that upon which its safety 
and perpetuity mainly depended, was the agricult- 
ural. Should this interest be sacrificed ? Should 
the country be a victim in order that the city 
might control the destinies of the State ? It 
would be impossible to adopt a perfectly equitable 
basis. New Orleans was a great and growing 
city, whose interests were disproportionate to those 
of the remainder of the State. It was filling up 
with all kinds of people, and was exposed to out- 
breaks and commotions. The country would not 
be justified in relinquishing the power which it 
had wielded, but had never abused, and transfer- 
ring it to the city. The country was free from 
those sudden passions which pervert and carry 
men's minds to fearful extremities ; it was a shield 
to the State, guarding it from sudden assaults 

438 






Jefferson Favors the Tursuit of Agriculture 

and preserving it from the insidious schemes of 
enemies without or within. Every consideration 
of sound policy dictated that the country should 
maintain its ascendency. 

Probably it was not known to the delegate who 
put forth these ideas that they have the authority 
of Jefferson's name ; but had the speaker read the 
nineteenth query in Jefferson's Notes on Virginia, 
he would have felt strengthened. " Those who 
labor in the earth," writes Jefferson, " are the chos- 
en people of God, if ever He had a chosen people, 
whose breasts He has made His peculiar deposit for 
substantial and genuine virtue. It is the focus in 
which He keeps alive that sacred fire which other- 
wise might escape from the face of the earth. Cor- 
ruption of morals in the mass of cultivators is a 
phenomenon of which no age nor nation has fur- 
nished an example. * * # Dependence begets sub- 
servience, and venality suffocates the germ of virtue 
and prepares for it tools for the designs of ambi- 
tion. Thus, the natural progress and consequence 
of the arts have sometimes perhaps been retarded 
by accidental circumstances ; but, generally speak- 
ing, the proportion which the aggregate of the 
other classes of citizens bears in any State to that 
of its husbandmen is the proportion of its unsound 
to its healthy parts, and is a good enough barom- 
eter whereby to measure its degree of corruption. 
While we have land on which to labor, then let 
us never wish to see our citizens occupied at the 
workshop or twirling the distaff. Carpenters, ma- 
sons, and smiths are needed in husbandry, but for 

439 



Constitutional History of the American People 

the general operations of manufacture let our 
workshops remain in Europe. It is better to carry 
provisions and materials to workmen there than 
bring the latter to the provisions and materials, and 
with them their manners and principles. The loss 
by the transportation of commodities across the 
Atlantic will be made up in happiness and perma- 
nence of government. The mobs of great cities 
add just so much to the support of pure govern- 
ment as sores add to the strength of the human 
body. It is the manners and spirit of the people 
which preserve a republic in vigor. A degeneracy 
in this is a canker which soon eats to the heart of 
its laws and constitutions." 

Among the dominating political ideas in Amer- 
ican history few have received wider acceptation 
than those of Jefferson on the relative worth of 
agriculture and manufactures in the evolution of 
democracy. Accepted without modification, they 
would have held America in a purely agricultural 
condition. Agriculture and manufactures togeth- 
er have determined the evolution of our institu- 
tions. With agricultural institutions slavery was 
identified; but it could never be identified with 
manufactures. Varied economic interests ulti- 
mately compelled the abolition of slavery. The 
most eloquent defenders of slavery were fond of 
describing the agricultural condition as the ideal 
state of society. In slave-holding States the pro- 
portion of slaves to the white population was al- 
ways smaller in cities than in the country. This 
difference was analogous to that which existed 

440 



Congested Tower in Large Cities 

between the highland and lowland regions of slave 
States — as in Virginia, Alabama, Kentucky, North 
Carolina, and Tennessee. The slave-holding States 
steadily and successfully resisted all efforts to in- 
troduce manufactures among them, and as steadily 
sought to maintain an agricultural homogeneity, 
which, it must be admitted, was economically as 
inconsistent as it was unnatural. The economic 
variations determined by the conflicting interests 
of city and country, of highland regions and low- 
land regions, explain many provisions in the con- 
stitutions of the commonwealths. 

So, on the 3d of February, Beatty, of La Fourche 
Interior, in defending the federal apportionment, 
claimed that it was demanded by the industrial 
condition of Louisiana, as seen in the almost an- 
tagonistic interests of New Orleans and the country. 
True, the city by such an apportionment would 
possess less influence than by an apportionment 
according to the number of white electors exclusive- 
ly. In all countries the influence of large cities 
had been detrimental to the States in which they 
were situated. Paris had controlled the destinies 
of France. It was by the motley and excitable 
population of that city that the horrors of the 
French Revolution had been perpetrated. There, 
revolution had been succeeded by revolution until 
Napoleon had placed the imperial crown upon his 
own head. Paris had followed the precedent of 
Rome, which aspired to govern the world. The 
slightest convulsion in the imperial city was felt 
in the remotest province. At last, by her over- 

441 



Constitutional History of the American People 

grown and pampered weight, Rome fell to the low- 
est scale of degradation and impotence. Had the 
power of the Roman Republic been diffused 
throughout the empire, instead of being concen- 
trated in the city of Rome, the republic would 
have possessed a recuperative energy capable of 
withstanding the shock of the Northern barbari- 
ans. Louisiana should profit by the experience of 
the; past. The country should be placed beyond 
the corroding influence of the city. The republics 
of ancient Greece, controlled by their cities, had 
fallen a prey to luxury and licentiousness. Loui- 
siana should pursue any system that would diffuse 
power throughout the State, instead of concen- 
trating it in any one part, especially in the city. 
It was dangerous to republican liberty to place 
power in the hands of the few. On the basis of the 
free white population, New Orleans would elect 
one-third of the Assembly, and at the rate of in- 
crease of that class of population, in a few years 
would choose one-half of it. Under these circum- 
stances, the federal basis was the correct one. 
Slaves were not merely property, but a portion of 
the population as well as labor of the State. As 
the laboring element, they were the exclusive source 
of wealth. If the free white population was adopted 
as the basis, taking into consideration the fact that 
the slave population of New Orleans was fast di- 
minishing, it was not impossible that in a few 
years, without detriment to her own interests, New 
Orleans might, perhaps, carry the abolition of sla- 
very. The number of Representatives chosen on the 

442 






The Negro Beyond the Pale of Politics 

federal basis should be fixed every ten years by the 
State Legislature, and never be fewer than thirty 
nor more than one hundred. 

To this proposition it was objected that repre- 
sentation should be equal and uniform throughout 
the State, and be forever regulated by the number 
of qualified electors, using the language of the 
constitution of 1812. The people have a right to 
govern themselves, and by the people was meant 
the free white males past twenty-one years of age. 
This excluded slaves, because, from necessity as 
well as from choice, slaves were regarded as prop- 
erty. They had never been enumerated as po- 
litical persons. Policy also compelled the exclu- 
sion of free persons of color from participation in 
political rights, and it might compel their exclusion 
from the State. It was wholly irrelevant to cavil 
against the exclusion of negroes, because minors 
and women were excluded. These were represent- 
ed by their actual or selected protectors, just as the 
Legislature represented the will of the people, the 
executive their power, and the judiciary their rea- 
son and justice. It had been urged that taxation 
should regulate representation; the parish paying 
the greatest amount of taxes to have the most 
Representatives. But taxation being laid on prop- 
erty and profitable professions, it was difficult to 
determine accurately who paid the tax. Certainly 
they who paid the money into the hands of the 
tax-collector were not the only ones who suffered 
the burdens of government. All classes of society 
contributed to the treasury. Property afforded no 

443 



Constitutional History of the American People 

test of representation. The federal basis could 
have no application in Louisiana, where no union 
was to be formed and no compromises to be made. 
It had no necessary connection with the represen- 
tation in the Legislature of an independent State, 
with common interests, the same institutions, and 
a homogeneous population throughout its limits. 
As applied to Louisiana, it was indeed an unequal 
basis, because it would necessarily lead to an anti- 
republican consequence — the minority governing 
the majority. This view was held by those who 
advocated that basis. They claimed that they had 
the balance of power in the country, and were go- 
ing to retain it. It was unreasonable to give one 
portion of citizens a greater weight in the legis- 
lative branch than another, although the two por- 
tions might be equal in numbers. To give a parish 
having three hundred electors one Representative 
in the Legislature, and another parish having only 
three hundred electors, two, because its electors 
owned five hundred slaves, was a violation of jus- 
tice. If one elector owned two slaves, especially 
if they were so old or so young as to be valueless, 
although another elector owned houses and lands, 
stores, shops, and factories, the slave-owner would 
have the larger representation. No white man 
would consent that two slaves should have more 
weight in the political government of Louisiana 
than he himself. To admit the federal basis would 
as necessarily make Abolitionists out of the inhabi- 
tants of parishes in which there were few slaves, 
and out of non-slave-holders, as it made Abolition- 

444 



The Federal Basis and Agricultural Interests 

ists of the people of the Northern States. The 
knowledge could not be kept from the slaves — and 
it would increase at every election — that two of 
them had more weight in the government than a 
free white man. This would soon destroy the in- 
stitution of slavery, to the infinite injury of the ag- 
riculture, the wealth, and the happiness of the State. 
Every slave should know what he really was in 
Louisiana — property. Every freeman should 
know that he had a voice in the government, 
that the slave had none. This knowledge would 
raise a Chinese wall between Abolitionism and 
slavery, and forever make this invaluable institu- 
tion secure. The evil consequences of the federal 
basis already felt by the slave-holding States would 
be greatly extended by admitting free persons of 
color to a participation in the government, instead 
of entirely excluding them. 

A leading object in adopting the federal basis 
was to give the agricultural portion of the coun- 
try an influence to which, by weight of numbers, 
it was not entitled. This result would promote 
antagonisms and prevent that harmony and equal 
union of the agricultural, commercial, and manu- 
facturing interests of the State so necessary to its 
prosperity. The sole purpose of changing the 
basis of representation in the constitution of 1812 
was to deprive the cities of New Orleans and La 
Fayette of the representation in the Assembly to 
which the number of their electors justly entitled 
them. The rule, followed in the old constitution, 
was to make taxation the basis of representation. 

445 



Constitutional History of the American People 

The State treasurer's report showed that the cities 
in the State contributed more than one-half of its 
taxes. The greater part of the taxable resources 
of the State were derived from the commerce con- 
centrating at New Orleans. The landed property 
of New Orleans and La Fayette comprised in 
valuation nearly one-half that of the whole State. 
The country parishes possessed one hundred 
and sixty thousand slaves, of the value of fifty 
millions of dollars. If representation was to be 
based on wealth, these two cities would have more 
Representatives than the country parishes, because 
the value of the manufactures, the machinery, the 
ships and steamboats, the warehouses, the rich 
and costly furniture accumulated in public and 
private houses, the stocks and money in bank, in 
these cities far exceeded in the aggregate the 
value of all the slaves of the remaining portion of 
the State. There was, then, no reason for depart- 
ing from the principle of representative govern- 
ment, except the arbitrary one of resisting the 
growing influence of the cities of the common- 
wealth. This spirit, prejudicial to the city, was 
based on a supposed diversity between the interests 
of town and country. Jefferson's ideas on the in- 
fluence of cities on the body politic did not per- 
suade all the members. Many of them believed 
that great commercial cities exercise a most ben- 
eficent influence on the States to which they 
belong, that commerce harmonizes and civilizes, 
and that any policy which arrests the growth of 
cities is injurious to the State. 

446 



To Curb the Power of Big Cities 

Benjamin, objecting to the federal basis, now 
argued that if slaves were to be included, then, 
with equal propriety, should be included oxen and 
horses, which were equally productive — an argu- 
ment advanced by the opponents of slavery in the 
federal convention of 1787. The discussion of 
the subject in the Virginia convention of 1830 
was again cited as a precedent, " as more able 
debates on the subject of representation than had 
occurred elsewhere, and as leading to the rejec- 
tion of the federal basis; representation in Vir- 
ginia, at least, having been based on the divisions 
of the State east and west of the mountains, and 
upon taxation and numbers." 

It was now urged that the principle of restrain- 
ing the influence of large cities was well known 
in all the States, and that equally well understood 
was the principle of giving to each separate polit- 
ical community within the State a voice in the 
general administration of public affairs. Not popu- 
lation alone, but locality and incorporated inter- 
ests, for the most part, entered into the basis of 
representation in other States. Several constitu- 
tions provided that, with the increase of population, 
there should be an increase in local representation. 
The Legislature of Louisiana should be forbidden 
to create any new parishes less in area than twenty 
to twenty-five square miles, and not containing a 
requisite population ; then the equity of representa- 
tion would be secured. In Massachusetts and New 
Hampshire the unit of representation was a cer- 
tain number of electors. In Vermont it was the 

447 



Constitutional History of the American People 

incorporate town. Rhode Island, apprehending 
danger from the concentration of power in cities, 
provided that no town should have more than one- 
sixth of the representation — a principle which has 
been followed in later State constitutions.* It 
was necessary to guard against the undue influence 
of cities. Maryland limited the influence of Balti- 
more, and in its constitution of 1838 also provided 
that should any of the counties of the State fall 
short of the number of people fixed upon as the 
basis, they should retain the representation which 
had been accredited to them. This constitution 
entered into details, in order to secure the State 
.against domination by municipalities. South Caro- 
lina was arbitrary in its apportionment. Charles- 
ton, although possessing one - third of the pop- 
ulation of the State, could not have more than 
one-ninth of the membership of both Houses. In 
North Carolina the basis according to the federal 
principles was adopted for the Lower House, though 
each county was to have one member whether or 
not it had the full ratio. So Georgia provided 
that one Senator should be elected from each 
county without respect to population. The basis 
was on federal principles, the ratio being fixed at 
fifteen hundred persons ; but no county could 
have more than four nor less than one Represent- 
ative. 

Kentucky, Ohio, and Illinois based representa- 

* As in Pennsylvania in 1873, respecting Philadelphia, and in 
New York in 1894, respecting the city of New York. 

448 






Restrictions on Municipal Representation 

tion on the number of qualified voters, but in all 
these States each county was given at least one Rep- 
resentative. The constitution of Louisiana of 1812 
was but a transcript of the Kentucky constitution 
of 1799. The inland States could never have vast 
cities with overpowering influence and interests 
antagonistic to those of the country, and there- 
fore their constitutions were not precedents for 
Louisiana. Alabama, Missouri, and Arkansas were 
cited to show that these carried out the principle 
that each county shall have at least one Represent- 
ative. The relation which the rural inhabitants 
of these States bore to the inhabitants in large 
towns was not like that which the inhabitants of 
Louisiana bore to the city of New Orleans. This 
city was the metropolis of the whole Mississippi 
Valley. If South Carolina, Maryland, New York, 
Rhode Island, and Pennsylvania had found it nec- 
essary to make constitutional provisions confining 
the influence of cities within their boundaries, 
was not this limitation a sufficient precedent for 
Louisiana? It should follow the experience of 
twenty States — give each organized parish one 
Representative, and limit the city of New Orleans 
to a fixed proportion — say, one-sixth of the entire 
representation. 

To these arguments a member from New Or- 
leans replied that the precedents cited from other 
State constitutions were originally derived from 
the method of apportioning representation in Eng- 
land, were part of the rotten - borough system of 
that country, and were not adapted to Louisiana. 

I. — FF 449 



Constitutional History of the American People 

The system in the Northern States prevailed, as it 
were, by force of habit. Massachusetts was an il- 
lustration of the degree to which it might be car- 
ried. In that commonwealth, in an isolated spot, 
situated on the sea-coast, frequented by watermen 
and fishermen, and containing but a few huts, was 
a town, and it had a Representative. There were 
doubtless other towns of no greater magnitude 
similarly distinguished. Certainly Louisiana would 
not agree to apportion representation on that 
basis. 

The constitutional history of the commonwealths 
was freely drawn upon, accurately and inaccurately, 
and with equal weight with the convention. It is 
as necessary to record the inaccurate citations as 
the accurate, for oftentimes an erroneous citation 
leads to the adoption of a clause in a constitution. 
The history of representative government is the 
history of fiction and of fact, for fact and fiction 
are curiously blended when a constitution of a com- 
monwealth is made. The interstate influence of 
the commonwealth constitutions can probably be 
no better illustrated than by recording such cita- 
tions as these which occur in the Louisiana con- 
vention. Though loosely made, and probably 
without the means of verification at hand, the 
fact that constitutions of other States are quoted 
in these conventions contributes to a general uni- 
formity in the fundamental law. The primary in- 
fluence of the eighteenth-century constitutions was 
chiefly felt in the earlier Western States. After 
1800, in slave-holding States the Virginia prece- 

45° 



Native -Americanism and the Naturalised Citizen 

dents were always authoritative; in free States 
the New York precedents prevailed. 

On the nth an effort to prescribe a real-estate 
qualification for Representatives was defeated by a 
vote of four to one, and further efforts in this di- 
rection were abandoned. By a majority of three 
votes the time for residence was fixed at three 
years. The spirit of Native -Americanism, a poli- 
tical characteristic of the country at this time, was 
quite strong in the convention, and it sought to 
exclude naturalized citizens from filling the office 
of Governor. In speaking against this proposi- 
tion, a member remarked that he could see no 
necessity for it, because members of many fam- 
ilies in the State had intermarried into foreign 
families, and had so interwoven their own inter- 
ests with those of naturalized citizens that these 
should be regarded as Americans. To discrimi- 
nate between the native-born and the naturalized 
citizen would produce great mischief in society. 
A period of sixteen years' residence as a citizen 
of the United States, ten of which had been spent 
within the State, would be a sufficient guarantee 
of interest and attachment to the commonwealth. 
In the Florida parishes there were many men 
born prior to the acquisition of that part of the 
State, and they should not be deprived of eligi- 
bility to office. 

This convention was in session at a time when 
there existed great prejudice against foreigners 
and the Native- American party was at the height 
of its influence. At this time New York, Maine, 

451 



Constitutional History of the American People 

and Virginia required their Governors to be native- 
born citizens, and the constitutions of these States 
were cited as sufficient precedent for Louisiana. 
Indeed, the Governor should be further qualified, 
as was the case in Massachusetts, by possessing 
landed property of the value of five thousand 
dollars, so as to make the State wholly secure in 
electing him. If a native American, he would 
fairly understand the wants of the people; if a 
slave - property holder, he would exercise the tax- 
ing power with discretion. The principal argu- 
ment in defence of a property qualification was 
always its guarantee of protection by means of 
taxation. One member was satisfied that the 
Constitution of the United States prohibited a 
State from limiting office to native - born Ameri- 
cans. Another thought that the United States 
and a State were not in the same relation to 
the citizen. If a State wished to make a dis- 
crimination among its own citizens, those of other 
States had no right to complain. A citizen from 
another State might challenge the right of Loui- 
siana to exclude him. It excluded not only the 
naturalized citizen of the United States, but also 
proposed to exclude from eligibility to certain 
offices all the naturalized citizens of Louisiana. 
This would practically reduce the citizens of other 
States and of Louisiana to the same level. But 
what is the right of the State to make such a dis- 
crimination? asked a member. Even those most 
jealous in upholding the rights of the States knew 
that no State sovereignty had any right to destroy 

45 2 



Supremacy of Congress over State Laws 

the effect of federal legislation when that legisla- 
tion was authorized by the national Constitution. 
The Constitution gave to Congress the power to 
establish a uniform rule of naturalization through- 
out the country. Several States had conceded to 
the general government all control over this sub- 
ject ; and, therefore, any legislation which the na- 
tional government adopted must be regarded as 
supreme. Congress had adopted uniform rules of 
naturalization, nor could any one of the States 
legislate contrary to the act of Congress. 

Any person having the act and the judgment of 
the court in his favor was an American citizen, and 
his citizenship could not be invalidated by any law 
emanating from State authority. The convention 
had power to prescribe any qualification it pleased 
for the office of Governor, provided that in doing 
so it made no discrimination between American 
citizens. Such discrimination was prohibited by 
the national Constitution when it declared that a 
citizen of each State is entitled to all the privileges 
and immunities of citizens of the several States. 
All American citizens were upon the same footing 
of equality; the Constitution did not distinguish 
between native and naturalized citizens.* The 
national Constitution was an injunction upon 
the several States, and with the strong voice of 
supreme authority forbade them to enact any legis- 
lation discriminating against the citizens of a par- 



* Except that the President and Vice-President must be na- 
tive-born. 

453 



Constitutional History of the American People 

ticular State. To exclude naturalized citizens from 
eligibility to the office of Governor would create 
distinctions and disregard the fundamental law of 
the Union. A native citizen of Mississippi going 
to Louisiana would be eligible to the office of Gov- 
ernor, but a naturalized citizen from any State 
would be excluded. This would clearly be creating 
in one State a discrimination between citizens of 
the several States. It could not then be said that 
citizens of each State had been vested in Louisi- 
ana with the privileges and immunities of citizens 
in all the States. Louisiana would have violated 
and destroyed the integrity of the federal Constitu- 
tion. 

In reply to this national idea of citizenship, it 
was said that the national Constitution did not per- 
mit so broad a view. It did not declare that a 
citizen of another State should have a right to 
hold office in any particular State. If so, a citizen 
of Missouri might be made a candidate, and, if 
elected by the people of Louisiana, claim of right 
to be its Governor. Citizens of other States could 
not claim the right to enjoy the same privileges 
and immunities in a new State which they had en- 
joyed in their own. If this were true, the citizen 
of Massachusetts coming to Louisiana would have 
a right to vote in Louisiana according to the laws of 
Massachusetts. In New York, negroes were entitled 
to vote, and if the doctrine was true, negroes would 
have a right to vote in Louisiana. Thus the old 
difficulty of realizing the equal rights of the citi- 
zens of the several States, which had sprung up at 

454 



Hard to Equalise the Rights of Citizenship 

the time of the Missouri controversy, and which 
always appeared when a slave-holding State at- 
tempted to define the franchise, duly appeared in 
the Louisiana convention.* 

* Compare this train of ideas with the discussion of the 
same question at the time of the admission of Missouri : Chap- 
ter vi. 



CHAPTER XV 

ELEMENTS OF DISCORD IN THE COMMON- 
WEALTH 

The only reason for retaining the word native 
in defining the qualifications of the Governor was 
to secure a native-born citizen as Governor in time 
of war. Birth and citizenship are not synony- 
mous terms. As all agreed that none but a citi- 
zen of Louisiana could vote, or be elected Gov- 
ernor, what was the relevancy in quoting the 
Constitution of the United States? So broad an 
interpretation of the national Constitution tended to 
deprive a State of its sovereign power to regulate 
the qualifications of its own officers and to define 
the qualifications both of the elector and of the 
elected. The States had never so far parted with 
their sovereignty as to deprive themselves of the 
right to regulate their own domestic affairs. It 
was impossible for citizens of foreign birth to dis- 
franchise their sentiments ; therefore it was unsafe 
to qualify them for holding office. In time of 
war, could a foreign-born chief magistrate so far 
forget the country of his birth as to avoid endan- 
gering the interests of the commonwealth ? The 
framers of the federal Constitution intended that 
the citizens of one State should not be regarded 

456 



Check on the Vagaries of State Constitutions 

as strangers in another State, but in all things be 
equal to its citizens. The Constitution, laws, and 
treaties of the United States were the supreme 
law of the land — a provision which forbade the 
introduction of foreign matter into a State con- 
stitution. A discrimination against naturalized 
citizens was abhorrent to the principles of rep- 
resentative government, and the judges of the 
United States courts would not recognize it. 
Though a State constitutional convention might 
deviate from the true path, the judges of the 
courts, both State and federal, would ultimately 
bring back constitutional provisions and legisla- 
tion into harmony with the supreme law of the 
land. It was true that six States — Alabama, Ar- 
kansas, Missouri, Maine, New York, and Virgin- 
ia — required their chief executive to be native- 
born ; but twenty — and with the Constitution 
of the general government in plain view — had 
rejected such a provision. According to the 
American theory of government, all citizens were 
on a footing of equality. Should Louisiana hesi- 
tate to choose between the wisdom of twenty 
States and the intemperance of six? Nor was it 
true, as some had declared, that at the time of 
making the national Constitution its framers in- 
tended such a discrimination. As soon as the 
States acknowledged that the federal Constitu- 
tion was the supreme law of the land, the power 
of naturalization became the exclusive privilege of 
Congress. 

On this point the best authority was The Feder- 
al 



Constitutional History of the American People 

alist. " The dissimilarity in the rules of natural- 
ization has long been remarked as a fault in our 
system, and has left a foundation for intricate and 
delicate questions. In the fourth article of the 
old confederation it is declared that the free in- 
habitants of each of these States — paupers, vaga- 
bonds, and fugitives from justice excepted — shall 
be entitled to all privileges and immunities of free 
citizens of the several States, and the people of each 
State shall in every other enjoy all the privileges 
of trade and commerce."* The term " free inhab- 
itants " here obviously implied that the citizens of 
the State were entitled in every other State to all 
the privileges of its free citizens. Every State 
was under obligation to recognize these interstate 
rights of citizens. 

By the old Articles of Confederation, any State 
might discriminate against the citizens of any 
other. This produced confusion and hostility 
among them. Political economy compelled the 
adoption of a uniform rule of naturalization, and 
this could be made by Congress alone. To se- 
cure this peace and the equity, the Philadelphia 
convention had given the power exclusively to 
Congress. 

The present convention had assembled to re- 
move the defects in the constitution of 1812, not 
to discriminate among the citizens of the State. 
If the naturalized citizen was made ineligible to 
the office of Governor, what would prevent an ex- 

* The Federalist, xlii. The speaker also quoted at length from 
Story, Commentaries on the Constitution, Vol. iii., Sees. 1097-1800. 

458 



Eminent Men Who Favored Native- Americanism 

tension of the same spirit of exclusion so as to 
prescribe the particular district or parish of the 
State from which he must be chosen ? In a little 
while this hostile feeling towards the citizens of 
other States would be made to include a partic- 
ular class of native-born citizens, and thus ulti- 
mately enthrone aristocracy and discord. The 
convention had been called explicitly to extend 
the right of suffrage. To require the Governor 
to be native-born would not be in accordance with 
the call for the convention. 

But others took a different view. Was not the 
Virginia convention of 1829 a sufficient prece- 
dent? Had not Monroe, Madison, and Marshall 
been among its members ? Had not that conven- 
tion required the candidate for Governor of Virginia 
to be thirty years of age, a native-born citizen of 
the United States, and a resident in the State for 
five years ? And those who opposed the qualifica- 
tion of nativity forgot that Monroe and Madison 
had been each twice President of the United 
States ; that Madison was one of the chief mem- 
bers of the convention that made the Constitution 
of the United States, and that Marshall presided 
in the Supreme Court. These men certainly un- 
derstood what provisions should be ingrafted in a 
State constitution. Was it error to err in such 
company ? Was not their authority sufficient ? 
Even Congress had given its consent to the qual- 
ification complained of. Alabama, Missouri, and 
Arkansas were not members of the old confedera- 
tion of thirteen States. Each had been compelled 

459 



Constitutional History of the American People 

to submit its constitution to the approval of Con- 
gress, lest any clauses should conflict with a provi- 
sion of the federal Constitution. Congress had 
admitted these States into the Union and sanc- 
tioned the provision in their constitutions requir- 
ing that the Governor should be a native-born 
citizen of the United States. Who would say that 
the Representatives and Senators of the whole 
country, the President of the United States, and 
the judges of its courts, had obstinately support- 
ed an unconstitutional provision ? There was no 
doubt of the constitutional right of Louisiana to 
insert such a clause. 

The debate on the qualifications of the execu- 
tives had at last narrowed down, as Marigny, of 
Orleans, expressed it, to the question whether the 
people of Louisiana would have a naturalized citi- 
zen for their Governor. Entering at length into 
the history of the State, he showed that its citizens 
of foreign birth had shown as sympathizing an in- 
terest in its welfare as those native-born. Asy- 
lums, hospitals, convents, cathedrals, institutions 
of learning, and public benefactions of various 
kinds attested the philanthropy of many distin- 
guished citizens of the State who were born in 
foreign lands. Officers of high rank, of inestimable 
service to the State, were alien -born. The gen- 
eral welfare of the commonwealth had been as 
much promoted by its naturalized as by its native 
citizens. Particularly was the proposed exclusion 
of foreign-born citizens unwelcome to the French 
population of the State, which was generously rep- 

460 



Free Colored Persons and the Slave States 

resented in the convention, and Marigny made 
the ablest remonstrance against the discrimina- 
tion, and deplored his inability to speak fluently 
in English.* 

As has so often occurred in the political his- 
tory of the country, the most earnest defence of 
democratic principles was now made by men of 
foreign birth. Undoubtedly the unwillingness of 
many members to make a person of foreign birth 
eligible to the office of Governor was due not to 
any desire to exclude naturalized persons of the 
white race from coming from another State or 
country, but because, as a member said, if the 
State had no right of preventing any class of citi- 
zens coming from other States from being eligi- 
ble to office in Louisiana, it would make a colored 
citizen of Massachusetts, or from any other free 
State, capable of holding office. Though free col- 
ored persons were not persons of foreign birth, 
they were not considered as capable of being iden- 
tified politically with the citizenship of a slave- 
holding State. They were, by nature, forever for- 
eigners. The convention was controlled by this 
sentiment, and in its desire to obliterate even the 
suggestion that a free person of color could be 
included in the concept of the State, it treated the 
free person of color as permanently a foreigner — 
the naturalized citizen had been one. The Afri- 
can was incapable of becoming an elector; the 
foreign-born white man, according to this notion, 

* The debates of this convention were published in both 
French and English. 

461 



Constitutional History of the American People 

though legally capable of naturalization, was in- 
capable in sound political economy of becoming 
identified with the essential interests of the State. 
The free person of color and the foreigner were 
to be excluded from the electorate essentially for 
the same reason. 

But Virginia was not the only precedent quoted. 
New York, in 1821, had admitted free persons of 
color, under a property qualification, to the right 
of suffrage. If eminent names, like those of Madi- 
son, Monroe, and Marshall, were to be quoted as 
authority for adopting the doctrines of Native- 
Americanism, the names of Tompkins and Van 
Buren, members of the New York convention, 
should also be quoted, for they had voted to ex- 
clude naturalized citizens from the office of Gov- 
vernor of New York. Had not Washington, in 
his farewell address, admonished his countrymen 
to beware of foreign influence? Jefferson wished 
that there was an ocean of fire between the United 
States and Europe. Certainly, the precedents and 
the authority for the exclusion of foreigners from 
office-holding in America were sufficient. 

At this point some one inquired whether the 
matter under discussion was of even slight im- 
portance in practical administration, as it was 
highly improbable that any naturalized citizen 
would ever be elected Governor of Louisiana. If 
it was true, however, that a naturalized citizen, 
a person invested with the rights of citizenship 
under the act of Congress, was not worthy to be 
trusted with the office of Governor, the principle 

462 



Political and Legal Acumen in the Constitutions 

would have to be carried further: all citizens of 
foreign birth would have to be looked upon with 
suspicion ; none of them could be intrusted with 
the administration of the laws ; and all the depart- 
ments of the government should be swept " with 
the besom, of Native-American reform." The ex- 
ecutive department, as every one knew, was less 
important than the legislative and the judiciary. 
Why exclude the adopted citizen from an office of 
little importance and invest him with a weightier 
authority? It was far more prudent to exclude 
him from the bench and from the Legislature. It 
was immaterial whether or not Monroe, Madison, 
and Marshall had voted for Native-Americanism 
in the Virginia convention. Marshall might be a 
learned jurist, but little importance should be at- 
tached to his opinions on political matters. In 
the days of the black cockade he was a Federal- 
ist, deeply imbued with the heresies of a school 
whose temporary ascendency had fastened upon 
the country the odious Alien and Sedition laws — 
the most disgraceful acts that had ever blotted the 
statute books of the nation. There was no doubt 
that, with his party, he sympathized in its hostility 
to foreigners. Such rights involved nothing more 
than the assertion and maintenance of the re- 
served rights of the States. By the consent of the 
States, the right of admitting foreigners to citizen- 
ship had been conceded to the general govern- 
ment; the States had consented that no distinc- 
tion should be made between different classes of 
American citizens. This was no invasion of State 

463 



Constitutional History of the American People 

rights. It was a stigma to describe the adopted 
citizens of the State as foreigners. An American 
citizen, declared to be such by an act of Congress 
and by a judicial decision, could not be distin- 
guished politically from an American by birth. 
The rights of the adopted citizen were as sacred, 
as those of the native-born; he could not be de- 
spoiled of them without violating the fundamental 
law of the land. If Louisiana was to distinguish 
between different classes of citizens, a due regard 
for its own safety required it to provide against 
real, not imaginary, dangers. The greatest peril 
menacing the South came from a different quarter 
than naturalized citizens. These dangers were 
the machinations of Northern Abolitionists. Was 
it not wiser for the State to guard against them 
than to attempt to shield the commonwealth from 
imaginary perils? If restrictions were to begin, 
they should be carried out, and only natives of the 
State should be eligible to office. If adopted citi- 
zens were to be disqualified from office because it 
was feared that some of the prejudices of earlier 
associations might cling to them, the same dis- 
qualification should attach to the Abolitionists 
and to all who came from the land of Abolition. 

The doctrine of Native-Americanism was too 
feeble to take root in Louisiana. It had not been 
broached before the election of the members of 
the convention. They were delegated to make 
a constitution for all the people of the State, with- 
out regard to their origin. 

Marshall's opinions on the franchise were worthy 

464 



Marshall's Leaning Towards the Federal Power 

of being accepted as authority. In purely legal 
matters not involving constitutional powers, his 
opinions were always sound, but upon constitu- 
tional questions there could be no worse guide. 
He invariably leaned towards the power of the 
federal government, and, where there was no ex- 
press grant of power, he was always ready to imply 
one upon the slenderest pretence. If it were true 
that the convention had no power to prescribe a 
constitutional provision depriving the citizens of 
other States from enjoying the same political 
rights and privileges which the citizens of Louisi- 
ana enjoyed, the result would be an absurd one — 
that a negro vested by law in Massachusetts with 
the privileges of a citizen would be entitled to all 
the privileges of a white citizen of Louisiana. 
The Constitution of the United States never con- 
templated any other than the white population in 
its provisions for government. An absurd con- 
clusion could not be made an argument against 
the principle. 

This idea of the entire exclusion of the African 
race originally from American citizenship was a 
favorite one with the advocates of slavery. It was 
advanced, as it will be remembered, by Pinckney, 
in the debate on the Missouri Compromise, when 
he said he was the author of the clause in the Con- 
stitution giving equal rights to the citizens of the 
several States, and that neither he nor any of his 
contemporaries at the time thought for a moment 
of including any person of the African race in 
the provision; and nearly half a century later the 
i. — gg 465 



Constitutional History of the American People 

same idea was fundamental in the Dred Scott de- 
cision. 

The struggle to enthrone Native-Americanism 
was a provincial legacy, whose title, when contested 
before the high court of public opinion, proved to 
be imperfect and unworthy of the decent respect of 
the American people. Louisiana, in 1845, though 
greatly influenced by the idea, refused to incorpo- 
rate it in its constitution ; and the convention, on 
the nth of February, struck out the word "native" 
by a vote of forty-one to twenty-seven, and in the 
same spirit rejected the long-residence qualification 
of ten years for the Governor. It was agreed that 
he should be required to be a citizen of the Uni- 
ted States, a provision which did not appear in the 
eighteenth-century constitutions, and which was 
seldom adopted before 1850. Indeed, at the close 
of the nineteenth century it is not found in all the 
constitutions. 

Like other States in which there was a discrim- 
ination against persons of color, Louisiana pro- 
vided that its militia should consist of free white 
men only. On the 26th, the basis of representation 
being again under discussion, the convention pro- 
ceeded, perhaps unconsciously, to define the slave- 
holding concept of an American commonwealth, 
and no definition so complete in all its details is to 
be found in the constitutional history of any other 
American State. It might not be expected that a 
slave-holding State, farthest removed from those 
others in which Abolition notions were held by a 
portion of the population not controlling public 

466 



The Mixed Population of Louisiana 

opinion, would express such sentiments as are re- 
ported in the Louisiana convention of 1845. 

The idea of the political corporation as a per- 
manent element in the basis of representation may 
be accepted as predominant in American gov- 
ernment. The constitutional history of Virginia 
shows that this notion has long prevailed in that 
commonwealth, and the discussions in Massachu- 
setts in 1820 illustrate the difficulty with which 
that idea, advocated by the Democratic party, was 
applied in that commonwealth. Louisiana, in 
1845, was not unwilling to follow this precedent 
for corporation representation ; but was it willing 
to apply it equally in both branches of the Leg- 
islature, or should one of them be apportioned 
according to population ? If apportioned by pop- 
ulation, of what should that population consist 
— of free whites only, or of free whites and three- 
fifths of all other persons, excluding Indians not 
taxed ? If there had been a homogeneous popu- 
lation in Louisiana the difficulty in apportioning 
representation would have been simple to solve. 
An apportionment by mere numbers could have 
been made. But there were two populations in 
the State — a white and a slave. This produced 
inequalities that rendered a white basis extremely 
partial and unequal in its operation. The prepon- 
derance of whites over slaves in some of the par- 
ishes, and of slaves over whites in others, was so 
varioiis that the idea of excluding slaves from the 
basis altogether was, in the opinion of many, unjust. 
It practically surrendered the political power of 

467 



Constitutional History of the American People 

the State into the hands of the cities, in which the 
white population was on the increase and the slave 
population on the decrease. The manual labor 
which was performed in the country by slaves, 
was, in the cities, performed by white servants. 
These white servants were not citizens of the 
United States, and were as little interested in the 
general welfare of the country as were the slaves. 
Should not the constitution of the State, in de- 
fining the basis of representation, guarantee to 
the people of the country the rights and powers 
to which they were entitled ? They possessed 
the greatest proportion of the territory of the 
State and the preponderance of its productive 
labor. All arguments favoring a mixed basis of 
representation, one in which property should en- 
ter, equally applied to the admission of slaves into 
the basis of representation, because slaves were 
property. In so far as they were elements in pop- 
ulation, slaves also were legal persons. Were not 
laws made for their protection ? Were they not 
punished if they committed crimes ? Were not 
the relations between master and slave defined? 
Was it right that the owners of this species of 
property should be denied that weight in the coun- 
cils of the State to which, as property-holders, they 
were entitled? If the white basis exclusively were 
adopted it would give to the city of New Orleans 
one-half the representation. Some seemed willing 
to fix that basis and restrict the city to one-fifth of 
the representation. But this was unfair to the 
southern portion of the State, as it would take 

468 



Difficulties of Representative Apportionment 

from it a portion of its political power and transfer 
it to the north and to the west. What was the 
policy of depriving New Orleans of her just share 
in representation and giving to the northwestern 
part of the State a representation to which it was 
not entitled ? 

The city of New Orleans and the northwestern 
part of the State were two regions in which pop- 
ulation was most rapidly increasing, and the in- 
crease was not of the same kind. This must 
produce confusion in the administration of gov- 
ernment. There was yet another difficulty : if 
the white basis alone was adopted, some of the 
parishes would be disfranchised because they did 
not possess a white population equal to the ratio 
required. These very parishes had always en- 
joyed representation, and it was unjust, as well as 
inexpedient, to take that away from them. To ap- 
portion a Representative to a parish not by pop- 
ulation entitled to one was practically to intro- 
duce the rotten-borough system of England. 

In apportioning representation in Louisiana 
there arose the same difficulty which characterizes 
every new country while yet its population is mi- 
gratory and some portions of its inhabitants are 
increasing much more rapidly than others. These 
uncontrollable elements provoke antagonisms be- 
tween city interests and country interests, and have 
compelled many artificial arrangements by which 
it has been sought to equalize representation. So, 
in 1845, Louisiana attempted to equalize it, and 
the difficulty was aggravated not only by the so- 

469 



Constitutional History of the American People 

cial changes rapidly going on in various parts of 
the State, by the coming and going of many peo- 
ple, but partly by the essential antagonism be- 
tween free labor in cities and slave labor in the 
country. No city population in America has ever 
been essentially a population of slave-holders. In 
a city, slaves could perform only domestic service. 
They were incapable of working in shops or facto- 
ries. As soon as a slave became an expert work- 
man he was well on his road towards freedom. It 
has often been said that slavery was abolished by 
the emancipation proclamation and the thirteenth 
amendment; but it must be remembered that 
these were written by the industrial interests of 
the American people. Free labor abolished sla- 
very in the United States. When Louisiana, in 
1845, was attempting to apportion its representa- 
tion, it was attempting the solution of an insolu- 
ble problem, for representation cannot be appor- 
tioned between slave-holding and non-slave-holding 
communities. They have no common unit of 
measure. It was claimed at this time in Loui- 
siana that the productive labor of the South was 
its slave labor; that it afforded a permanent and 
certain basis of representation, and that in view 
of the political position of the State such a basis 
was recommended by good policy. In other words, 
to refuse to apportion representation according to 
the white population and three-fifths of the slaves 
was to repudiate African slavery. Was it better 
for Louisiana to concentrate political power in its 
cities or to adopt a basis of representation in har- 

470 



The Basis of Representation in Louisiana 

mony with the political doctrines generated nec- 
essarily in a slave-holding community ? 

Thus, it was said at this time that there were 
but three modes of apportioning representation 
applicable to the State — according to population, 
according to taxation, and according to the number 
of qualified electors. From its peculiar position 
the State was precluded from adopting the basis 
of population, because in that population was a 
class of beings who were held as property, and an- 
other class, free persons of color, who, though pos- 
sessing personal freedom, did not exercise any 
political rights. The basis of taxation was liable 
to many objections. Slavery obliged the State to 
adopt various measures for the purpose of making 
secure that species of property and of keeping it 
in a proper state of subordination. The militia 
system and the police patrols of the State were very 
burdensome on this white population; and, there- 
fore, the principal weight of taxation had been 
thrown on slave property. The Constitution of the 
United States provided that to the whole number 
of free persons there should be added three-fifths 
of all others. By adopting such a basis the prin- 
ciple of taxation would enter into the apportion- 
ment, for the only manner in which slaves could 
have any possible connection with the political 
system of the State was in their character as prop- 
erty, which made them subjects of taxation. Free 
persons of color could not be made a part of the 
representative number, nor could unnaturalized for- 
eigners, nor citizens of other States who happened 

471 



Constitutional History of the American People 

to be in the commonwealth. Nearly all the free 
persons of color, the foreigners, and the citizens of 
other States were congregated in New Orleans. 
Of the twenty-three thousand free colored persons 
in the State, nearly twenty thousand were inhab- 
itants of New Orleans. 

If taxation on slaves alone was made the basis, 
it would operate unequally, not only on city and 
country, but on different portions of the country. 
The number of slaves was not equal in the dif- 
ferent parishes. Where slaves predominated, rep- 
resentation would be greater in proportion than 
where whites predominated. The result in either 
case would be unjust. Sooner or later there would 
be a conflict between city and country. If it were 
true that slaves were diminishing in the city, the 
same causes that contributed to that result would 
continue to operate, and the inhabitants of the 
cities, not slow to perceive that they were losing po- 
litical power in the ratio of the decrease of slaves 
among them, and in consequence of their increase 
in other portions of the State, would soon be 
maintaining that the basis of representation in 
the State was not white men, but slaves. This 
would not only cause antagonism between city 
and country, but would create antagonism towards 
slave property, as being used to deprive the cities 
of their just political power. 

From this antagonism would arise hatred to 
slavery itself, and the citizens of New Orleans 
would ultimately be united as one man against 
the institution. Such a condition of affairs in 

47 2 



Claiming the Suffrage for the Toiling Masses 

Louisiana would practically be the transfer of the 
cry of Abolition from the North to Louisiana it- 
self. It was necessary, therefore, for the general 
welfare of the State, that such an antagonism 
should not be permitted to arise. This interpre- 
tation of the discriminating effect on New Orleans 
of the adoption of the federal basis was, however, 
denied. 

Would it deprive New Orleans of a portion of 
her political power ? By its adoption there would 
be included in the basis a numerous class found in 
the city, and found in the country in smaller num- 
bers — the laboring class of the white population. 
These white laborers were the counterparts of the 
country slaves, and the parallel was drawn " with- 
out intending to disparage the poorer classes that 
work in the city from day to day as laborers," and 
for whom some members of the convention boast- 
ed to have been steadfast in claiming the political 
and important right of suffrage. Admitting that 
greater relative political power was to be conceded 
to the proprietors of slaves than to those who did 
not possess that kind of property, some members 
of the convention were at a loss to know how 
this would tend to introduce Abolition into New 
Orleans, "and make the city a hot -bed of that 
abominable doctrine." If there was any danger of 
its prevalence, the country should look to itself for 
its own protection. The country should never be 
made dependent for safety on the city. In spite 
of the theories and declamations of many, the 
federal basis was the bulwark against Abolition- 

473 



Constitutional History of the American People 

ism. It was a peculiarly fitting basis for represen- 
tation in a slave-holding State. 

Had not the country the political ascendency 
and the means of protecting itself? Was not the 
sentiment regarding slavery unanimous in the 
State, as had been shown in the treatment by the 
Senate of the address of the State of Massachu- 
setts on the very matter of slave representation ? 
Had not the Senate of Louisiana — and without 
referring this address to a committee — instantly 
passed resolutions expressing its indignation at 
such interference ? Had not the resolutions of 
the Senate been taken down to the House of 
Representatives, and, after an animated but brief 
debate, been engrossed, returned to the Senate, and 
adopted unanimously ? If the principle of federal 
representation was bad, then the Abolitionists 
must be in the right. The proof of its goodness 
was its preservation of the Union, for no one pre- 
tended that if the basis were abrogated the Union 
would hold together twenty -four hours. It was 
conceded to be a basis on a natural principle. 
Some said that the same reasons for its adop- 
tion did not exist in the State as in the United 
States. The effect in both cases was the same, for 
it would be an equilibrium between the States on 
the one hand and between parishes on the other. 
It would reconcile disparities in population — an 
excess of white population balancing an excess of 
slave. It had been said that this basis involved 
an unjust preference for one kind of property. 
But it was not easy to subject all kinds of prop- 

474 



Slaves Both Property and Population 

erty to equal taxation, and some kinds of property 
could not be made subject to taxation. Slaves were 
visible property ; they were attached to the soil. It 
was impossible to apportion representation equally 
upon all kinds of property, and it was equally im- 
possible to distribute representation, giving to each 
political community its just proportion. The real 
difficulty between the Abolitionists and the people 
of Louisiana was slave labor as opposed to white 
labor. This difference was at the foundation of 
all their pretended philanthropy towards the slave, 
and it was therefore essential that the people of 
Louisiana demonstrate that the principle against 
which Abolitionists waged war was consecrated in 
Louisiana as a perpetuity. Although in a sense 
slaves were property, they were in themselves, in 
another sense, a portion of the population of the 
State, and both as persons and as property should 
enter into the basis of representation. But this 
idea was not gently received. 

Was there nothing derogatory, inquired a mem- 
ber, in the idea of placing a slave upon an equal- 
ity with a white man in representation ? It would 
give rise to jealous feelings. The proprietors of 
slaves would have much more influence at the 
ballot-box than the honest citizen who was too 
poor to own a slave. True, both would deposit 
one vote, but the vote of the slave-owner would be 
doubled, trebled, or quadrupled in proportion to 
the number of his slaves. The white man, the 
father of five minor children, would have but a 
single voice at the polls, while the owner of a 

475 



Constitutional History of the American People 

decrepit and worn-out negro and four negro chil- 
dren would be entitled not only to his own vote, 
but also to three additional votes on account 
of those slaves. The principle was unjust. It 
operated exclusively in favor of the rich. Were 
there not poor people in the country who did 
their own work? Was it not repugnant to the 
true principles of democracy that the farmer hav- 
ing no slaves, working his own farm, should have 
less weight in the government of the State than 
the adjoining rich proprietor who had a hundred 
negroes ? If the purpose in advocating the fed- 
eral basis was ultimately to restrain the political 
influence of the city, was it not better to prescribe 
the exact representation of the city according to 
a less questionable principle than that of the 
federal basis ? Even in Virginia the federal basis 
had not been advocated except as a means for 
maintaining the equilibrium between the two 
great geographical divisions of the State. 

On the 27th an effort was made to apportion 
representation according to the federal basis, and 
also to limit the representation in any city or 
parish to one -fifth of the whole number of Rep- 
resentatives. This proposition at once led to the 
disclosure of the anomaly upon which it rested. 
If a city or parish contained more than one-fifth 
of the entire population of the State, how could it 
justly be deprived of its proportion of representa- 
tion ? No other State in the Union combined 
two so hostile propositions. 

The African slave and the free person of color 

476 



Humanizing Influence of Spanish Colonisation 

were not without advocates even in this conven- 
tion. At all times in America the slave had been 
protected. The Spanish government prescribed 
the same criminal jurisprudence for the white and 
for the negro population. Had not the slave a 
right to purchase his own freedom ? Had he not 
a right to acquire and hold property ? Even the 
master had no right to inherit his slave's property? 
In some parishes slaves had the right to assemble 
on Sunday, a right originally granted them by 
Isabella the Catholic, which the State of Louisiana 
had respected until it adopted the black code. 
Under the name of law slaves had been deprived 
of nearly all their ancient privileges, and yet some 
sought to apportion representation according to 
slaves. The constitution of 1812 deprived free 
persons of color of all right to representation. 
When that constitution was made, the basis of 
representation was the free white population. 
Under the Spanish government free blacks 
had enjoyed all the privileges of white persons. 
This condition had led to an amalgamation be- 
tween the white and the colored races until the 
black race had come within four degrees of the 
white. Were there not families in the State whose 
color depended on the law as a means of recogniz- 
ing that they were of the white race ? Because of 
the amalgamation of races in Louisiana, it was im- 
possible to apportion representation on any basis 
in which color must be a discriminating element. 
Equally unjust was it to apportion representation 
so that a city having four-fifths of the population 

477 



Constitutional History of the American People 

and paying three-fourths of the taxes of the State 
should have but one-fifth of the representation. 

But there were those who objected to the feder- 
al basis because slaves could be conceived in no 
sense as being persons. Though in a moral sense 
they were persons, according to the condition of 
affairs in the State, because they formed an ex- 
clusive portion of its population, they could not be 
conceived to be political persons. In no democracy 
which could be construed as a precedent had the 
slave ever been allowed to participate in the gov- 
ernment. The necessity for compromise, which 
had dictated the three-fifths clause of the Constitu- 
tion of the United States, did not exist in Louisiana. 
Nor was Virginia a precedent. The great question 
in that commonwealth in 1830 was the basis of 
representation, and the convention made it a mixed 
basis of qualified voters and taxation. Was not 
the whole purpose of those who advocated the 
federal basis to aim a blow at New Orleans ? 
Was it not to strip her of her just political influence 
in the State ? The problem in Louisiana was to 
give to the representation of equal numbers equal 
weight upon subjects where a diversity of inter- 
ests existed. The federal basis, it was said, had 
been repudiated by the American commonwealths, 
for it had not been adopted by them in their do- 
mestic representation, except in North Carolina, 
Florida, and Virginia, where it was adopted by 
the Legislature. 

Eustis, a member from New Orleans, declared 
that the political condition of the State was too 

478 



Efforts for the Equalisation of Representation 

would not diminish the representation of the poor. 
As an exact mathematical equality in representa- 
tion was impossible, it was necessary to adopt a 
system approximately equal. Not only the un- 
equal distribution of population over the State, 
but the division of its people racially as bond 
and free compelled the adoption of a system 
which would practically secure the equities of 
representation. It was true, that the federal basis 
would have some tendency to increase the power 
of the country parishes. This increase in the rep- 
resentation of the country districts would be offset 
by the greater city representation made possible 
by the subdivision of the city into wards and dis- 
tricts. By such a subdivision there would be 
practically no fractions of unrepresented popula- 
tion in the city, and thus the city would have an 
advantage over the country. The city would have 
a solid representation, while in every country par- 
ish there would be an unrepresented fraction. The 
aggregate of these fractions in the country was 
politically an offset which compensated the peo- 
ple of the city for any loss incident to the federal 
basis. 

The discussion of this basis brought out many 
opinions which now seem almost incompatible 
with the political conditions of the time. There 
were men in the convention who, though slave- 
holders and eager to secure as much power as 
possible for slave property, declared that they 
would never consent to put the black man on a 
footing with the white by making a slave-holder 

483 



Constitutional History of the American People 

and his hundred slaves equal to sixty free white 
citizens. It might be expected, perhaps, that in a 
slave-holding State there would never be opposi- 
tion to the application of the federal basis, for this 
basis of representation was the evidence not only 
of the legality of slavery, but also of its rights to 
representation as property. If slaves were prop- 
erty — and all slave-holders so considered them — 
then the argument made by Webster in the Mas- 
sachusetts convention of 1820, that property is the 
basis of government, applied with peculiar force in 
a slave-holding State, and political consistency de- 
manded that the federal basis should be the basis 
of representation in a slave - holding common- 
wealth. However, after an exhaustive debate on 
the applicability of the federal basis to the people 
of Louisiana, on the 2d of March a motion to ac- 
cept the basis was defeated by a small majority — 
twenty-eight to twenty-two. 

The failure of the convention to apportion rep- 
resentation in that State on this basis was a sign 
of the times, an intimation of impending political 
changes. ' It was of itself evidence of the futility 
of the chief compromise of the national Constitu- 
tion, and of the wholly unstable basis upon which 
it rested. It was proof that American democracy 
was resting upon an artificial foundation. Yet at 
this time the great majority of the people of the 
United States with one accord were declaring in 
their State constitutions and their laws that the 
primary condition of maintaining the Union was 
the retention of the federal basis of representation, 

484 



All the Constitutions Against the Negro 

and, as was said by Calhoun, that slavery was the 
natural condition of the African race. Thus far, 
at least, in tracing the evolution of representative 
government in this country, we have found no 
evidence in the making of State constitutions that 
the black man had rights which the white man was 
bound to respect. 

No obstacle in the way of adopting the federal 
basis was more potent in this convention than the 
inequalities which it would emphasize among the 
several parishes of the State. The relative popu- 
lation, both white and slave, of these parishes dif- 
fered. There would remain unrepresented fractions 
of both populations, and these would prove as ele- 
ments of discord in the commonwealth. This ob- 
jection was a natural one. The Abolitionists had 
long before pointed it out, not as affecting the 
rights of the slave population, but chiefly as dis- 
criminating against the white race. Much of the 
criticism of the national Constitution and many of 
the arguments against the basis of representation 
were made not because that basis deprived the 
black man of his rights, but because it discrimi- 
nated against the white man. As viewed through 
some Northern eyes, it was a basis which, by in- 
cluding slave representation, created inequality be- 
tween white men. When it was sought to apply 
this principle in a slave -holding State it was ob- 
jected to essentially for the same reason. There 
was no possible solution of the problem of equita- 
ble representation for the nation or for a common- 
wealth so long as slavery continued in the Union. 

485 



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Constitutional History of the American People 

On the 14th of May a new constitution for the 
State was agreed to. It apportioned representa- 
tion according to the number of qualified electors, 
giving to each parish at least one Representative, 
and providing for a reapportionment by the Legis- 
lature. In 1855, and every succeeding tenth year, 
the Legislature was to fix upon a representative 
number, and each parish was to have as many Rep- 
resentatives as the aggregate number of its electors 
entitled it to, an additional Representative being 
allowed for any fraction exceeding one -half of 
the representative number; but the number of 
Representatives was never to be less than seventy 
nor more than one hundred. The elective fran- 
chise was limited to free white males, of age, who 
had been two years citizens of the United States, 
and had resided in the State two consecutive years 
preceding the election. There was no provision 
for the inclusion of free persons of color. 







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